Things are bleak in SA right now — and foreigners are an easy scapegoat

In 1955, the ANC proclaimed in the Freedom Charter that SA “belongs to all who live in it”. In 2022, at the ruling party’s recent policy conference, a proposed policy on immigration included the development of “a well co-ordinated strategy for tracking down illegal foreigners”. 

“It is the duty of every citizen to report unlawful activities and the ANC branches must take the lead in this regard,” were its chilling words. 

It was perhaps inevitable that when the ANC lost its comfortable electoral majority it would cynically roll back on its less popular principled positions.

Things are bleak in SA right now. Foreigners, a vulnerable minority, are an easy scapegoat for everything that is wrong — especially for politicians, because foreigners don’t vote. 

This week a legal NGO, the Socio-Economic Rights Institute (Seri), had to close its offices in Braamfontein because of threats to and harassment of its staff. These came after it went to court to enforce a 2013 court order from the Constitutional Court that interdicted the City of Johannesburg and the police from interfering in the rights of more than 1,000 informal traders who had been lawfully selling their wares in Johannesburg, some for more than 20 years. 

It is the duty of every citizen to report unlawful activities and the ANC branches must take the lead in this regard — party's proposed policy on immigration

Allegedly in breach of that order, the city had summarily stopped traders (with licences to trade) from trading. Seri returned to the high court and obtained a fresh order restoring the status quo, with the city’s consent. 

The threats to Seri began with ActionSA’s Nkululeko Mbundu, the mayoral committee member for economic development, saying on Twitter that Seri and the South African Informal Traders Forum were “using locals to what appears to be a front to lodge the application”, adding it had become “apparent that we are dealing with a big syndicate here”.

After his tweets, Seri lawyers received threatening phone calls and death threats on Twitter, including threats to burn down its offices. The city has since apologised and disavowed Mbundu’s statements, but he and ActionSA head Herman Mashaba have doubled down.

Not to be outdone, an ANC poster circulating on social media called for protest action outside the Krugersdorp magistrate's court, where suspects were to appear for the horrific gang rapes of eight women.  The poster said: “Join the protest action against #illegal immigrants #zamazamas #rapists”. The unspoken assumption in those words — that illegal immigrants and zama zamas are rapists — is staggering.

While the politicians may join the race to the bottom in appealing to the darkest corners of our psyches, the job of the courts in a constitutional democracy is a different one: to eschew popular sentiment and hold the line of the law.

In State vs Makwanyane, former chief justice Arthur Chaskalson said on the constitutionality of the death penalty: “Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the courts to interpret the constitution and to uphold its provisions without fear or favour ...

"The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.”

In 2013, when the informal traders went urgently to the Constitutional Court, they had been without their livelihoods for three months after the city had unlawfully confiscated their goods and chased them from their stalls. 

The idea was to rid the inner city of criminality and clean it up. The streets of Johannesburg were dirty and crime-ridden so there was significant public support for the law and order sentiment behind the city’s Operation Clean Sweep. 

At that time there was no mention of the nationality of the traders. The reported judgment does not mention it either. Now, the fact that some of the traders are not South Africans has dominated the public debate over their continued presence on the streets of the inner city. 

Still, the high court held the line. The city had to pull back while the traders’ lawyers bore the brunt of the xenophobic hatred of those supporting Mbundu’s rhetoric on Twitter.

Just as courts must be impervious to public opinion, they must patrol the limits of how far they, as courts, can intervene in what is properly the terrain of other arms of state. 

This week the Constitutional Court delivered a judgment that closed the door on foreign law graduates practising as attorneys or advocates in South African courts unless they have permanent resident status. 

Even if foreigners have other types of work permits or have asylum seeker or refugee status, the Legal Practice Act forbids them from being able to practice in our courts — unless they are permanent residents (or parliament changes the law).

This was what several aspiring legal practitioners and the Asylum Seeker Refugee and Migrant Consortium had gone to the apex court to challenge — saying the absolute bar amounted to unfair discrimination. 

Contrary to some takes, the court case was never about people seeking to change their immigration status or get working visas through the back door. The applicants had always limited their case to people who already had the right to work in SA. A judgment in their favour would not mean anyone was going to take South Africans’ jobs because the case was about people who already had jobs.

But the case was a tricky one because there is a long line of case law that holds that it is a legitimate government objective to prioritise categories of jobs for South Africans. The right to choose your profession in section 22 of the constitution is expressly only available to citizens; and the final certification judgment found there was nothing wrong with this. 

There are worse things than scrubbing a street, but their professions did not protect them from the gas chambers either

The constitution also expressly allows the state to regulate the practice of a profession.  In the Watchenuka case, which held that asylum seekers must have the right to work, the Supreme Court of Appeal stated it is acceptable in international law for a state to admit foreigners only in such cases and on such conditions as it may see fit to prescribe. 

Even with refugees and asylum seekers who may be never be able to return to their countries of origin, the government has still drawn a distinction between their status and the status of permanent residents, said justice Zukisa Tshiqi on behalf of a unanimous court. 

“While this policy may be open to debate, the fact that the Legislature has adopted it is not arbitrary or illegitimate. It is restrictive and protectionist, and those are permissible governmental objectives,” said the judgment.

However, even a law that serves a legitimate government objective may still be unfairly discriminatory, and therefore unconstitutional, it said. The judgment then proceeded to look at this question.  

In deciding cases of alleged unfair discrimination the courts ask a series of questions that were first set out in the seminal case of Harksen vs Lane. The court asks whether differentiation between groups of people amounts to discrimination: is the differentiation between categories of people on a ground listed in the constitution? Listed grounds include race, gender, sexual orientation and many others. Citizenship and nationality are not listed grounds. 

When a ground is not listed, the court asks whether the differentiation is “based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a seriously comparable manner”, said Tshiqi.

The judgment assumed this was so, without deciding it, and moved on to the next question: was the discrimination unfair?

It is at this point that the applicants’ case failed. The test for unfairness primarily focuses on the impact on the applicants, said the judgment.

Here, the exclusion was a narrowly tailored one: “The limitation only restricts them from being admitted as legal practitioners ... and does not operate as a blanket ban to employment in the profession as a whole.” They are not “left destitute with no alternative source of employment”, said the judgment.

So, it’s not unfair because it could be worse.  

Another reason is given in the judgment: the applicants essentially want to choose their vocation. But in section 22, the constitution expressly gives that right only to citizens.

Here the judgment falls to be criticised. The fact that the constitution protects South African citizens’ right to choose their profession does not, without more, make it fair to discriminate against foreigners. That is determining the content of section 9, the equality clause, by what is contained in another right. 

Then, if you accept that barring foreigners from practice has the potential to impact on their dignity as human beings, it is not enough to simply say that the discrimination is not unfair because it could be worse; and because permanent residence is a different category of foreigner from other categories. More was required in the judgment. 

When looking at the unfairness leg of the unfair discrimination inquiry, courts ask about the position of the complainants’ group in society: its history, the overall socioeconomic context, the systemic disadvantages they face. Also, courts must consider the purpose of the law in issue. 

A noticeable feature of this case was how little evidence was brought forward to support the protectionist rationale for the ban — to answer the question whether there is an oversupply of law graduates seeking to practice and that the proportion of foreigners in this oversupply is a threat. 

The high water mark of the justice minister’s evidence on this was to say that in 2011 there were 3,300 law graduates and only 2,200 contracts of articles were registered in 2012. This signified little as it did not include pupillage (the practical training for advocates). It did not factor in that many law graduates do not seek employment in practice; or tell us how many of those who graduated were foreigners (if say, there were only 10 out of 3,300, is the problem really them?)

Anecdotally, we hear that law graduates are struggling to find jobs. It may be true there are not enough jobs in legal practice and foreign lawyers are taking them away from South Africans. 

The fact that the constitution protects South African citizens’ right to choose their profession does not, without more, make it fair to discriminate against foreigners

But without proper evidence, the question becomes: what is really behind the law? Is it little more than a shortcut, populist response — not that different from what MMC Mbundu was doing with the informal traders and what seems to have motivated those that threatened to burn the offices of Seri. 

By not traversing these it feels as if the judgment missed something about the nature of the prejudice that can inform this type of policy and the context of heightened xenophobia. In Black Earth: The Holocaust as History and Warning, Timothy Snyder describes “scrubbing parties” in Austria just after the Nazis annexed it in 1938; where Jews were identified — sometimes even by passers-by — and forced to kneel and scrub the streets in an act of ritual humiliation. “Jews, often doctors and lawyers or other professionals, were suddenly on their knees performing menial labour in front of jeering crowds,” said Paul Bloom in the New Yorker in 2017, citing Snyder’s book. 

In the broader scheme of things, there are worse things than scrubbing a street, but their professions did not protect them from the gas chambers either. 

Closer to home, it is an oft-heard response from racists that “it’s not that bad”. Xenophobia does not care if foreigners are doctors or lawyers or street traders or refugees. Xenophobia can manifest as “small” acts of prejudice and big acts of exclusion — but they come from the same place. A place that does not belong in the SA that our constitution aspires to.