Xenophobia in the labour market: A South African legal and human rights perspective

Introduction

Xenophobia is not only a social problem; it is also a legal problem. It is not a South African problem – it is a global problem. In both Europe and the United States, xenophobic rhetoric and hate crimes are on the increase. In Europe, xenophobia is part of a growing tide of hatred against migrants, mainly fuelled by far-right parties. In the United States, the recent increase in xenophobia is partly due to outgoing President Donald Trump’s anti-immigration policies and open hostility towards foreigners. In China, many Africans were left homeless amid rising xenophobia during the coronavirus/CORVID-19 resurgence in that country in March/April 2020. The focus of this article, though, is on South Africa where ‘xenophobia can be traced back to the pre-1994 era when immigrants ¹ faced discrimination and violence, even though this stemmed from institutionalised racism due to apartheid’. ² More specifically, the article focuses on xenophobia in the labour market and workplace and the human rights implications it can and does have on foreign employees. Generally, after 1994, incidents of xenophobia in South Africa increased, despite contrary expectations. Between 2000 and March 2008, at least 67 people died as a result of xenophobic attacks. ³ In May 2008, xenophobic riots left an extra 62 people dead. ⁴ In 2015, another nationwide spike in xenophobic attacks prompted a number of foreign countries to begin repatriating their citizens. More recently, in 2019, at least 12 people lost their lives and more than 1500 were forced to flee their homes due to xenophobic violence. ⁵

This paper begins with a conceptual context of xenophobia in South Africa before analysing its causes, including poverty, inequality, and socio-economic conditions. In contrast to current scholarship that portrays xenophobia in South Africa as a consequence of anti-immigrant sentiments and stereotypes that stem from social, political, economic and cultural dynamics, ⁶ this paper argues that the causes of xenophobia are much more complex than that. In addition to those dynamics, it is argued, xenophobia in South Africa may well have its genesis in the pre-1994 apartheid and colonialism era which sought to impose segregation and instil hatred between and among black people.

The main argument in the paper though, is that the South African legal framework and its implementation do not go far enough in addressing the problem of xenophobia in the workplace and the human rights of foreign employees are accordingly negatively impacted. This argument is based on existing international legal framework and the relevant domestic legal framework including labour law and human rights legislation with provisions relating to xenophobia and associated discrimination in the South African labour market. The forementioned legal framework is discussed. The role the judiciary can and does play is also explored through the relevant case law before making recommendations and concluding remarks on what can be done to protect the rights of foreign employees and reduce or prevent xenophobic attacks against them.

Conceptual context

A lot has been written and said about xenophobia in South Africa – particularly in media tabloids. There have also been several attempts at scholarly writings on the subject. Most of the writings and studies, however, have tended to be descriptive in nature providing summaries and opinions, usually in the aftermath of outbreaks of xenophobic attacks from time to time. In defining the term ‘xenophobia’, some of these studies have drawn from the standard dictionary definitions or definitions put forward by certain organisations. Drawing on the Merriam-Webster Dictionary, for example, Odiaka defines xenophobia as ‘fear and hatred of strangers or foreigners or of anything that is strange or foreign’, ⁷ whereas McDonald and Jacobs use the Oxford Concise Dictionary which simply refers to xenophobia as ‘a deep dislike of foreigners’. ⁸ Adjai and Lazaridis on the other hand, prefer the definition of the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance which defined xenophobia as ‘attitudes, prejudices and behaviour that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity’. ⁹

There are those who have described xenophobia as a crime against humanity. As far back as 2008, the Black Lawyers Association (BLA) of South Africa, for example, labelled xenophobia a crime against humanity and called on the government to take steps to pass this as legislation. ¹⁰ Another commentator has argued that xenophobia meets all the criteria for a crime against humanity and for that reason, ‘the provisions of Article 7 of the Rome Statute of the International Criminal Court should be enlarged to provide for xenophobia as a crime against humanity in order for victims of xenophobic attacks to seek redress at the International Criminal Court when national states fail to act’. ¹¹ Moreover, Evans and Newnham, have described xenophobia as ‘a crime against humanity involving aspects such as dislike, fear, distrust, or intolerance of foreigners, often expressed in terms of hostilities toward nationals from other countries’. ¹²

The elements that stand out in the above definitions of xenophobia include fear, hatred, dislike and prejudice (against foreigners). Although these are generally sufficient to portray a description of xenophobia, in South Africa such description would fall short if it did not include the manifestation of violent attacks that commonly accompany the fear and hatred. It is submitted that the violence usually associated with xenophobia in South Africa has more to do with the causes of the xenophobia than anything else. It is for that reason that a brief discussion of the causes of xenophobia in South Africa is undertaken before turning our attention to a brief discussion on the international dimension.

Causes of xenophobia in South Africa

A discussion on xenophobia in the South African labour market would be incomplete without first alluding to the causes of xenophobia in South Africa in the first place. In an attempt to explain these causes, Odiaka advanced several theories underlying possible motives for the xenophobia. ¹³ These include scapegoating which ‘implies that people become so frustrated in their effort to achieve a desired goal that they tend to respond with aggression’. ¹⁴ The other possible motive is ‘power authority’ which ‘views the relationship between groups as a function of their competitive positions [and] a threat by one particular group to another becomes a source of hate [hence] when people feel insecure in the face of threat, they portray resentment and hate’. ¹⁵ Related to this is the ‘power-conflict’ motive which functions ‘as a means of neutralizing out-groups that the dominant group perceives as threatening to its position of power and privilege’. ¹⁶ Other motives advanced include the normative theory which posits that ‘people tend to conform to social situations in which they find themselves’. ¹⁷ They also include the bio-cultural approach which ‘explains that xenophobia operates on the level of physical and cultural appearance’, ¹⁸ and the isolation hypothesis which ‘views xenophobia as a consequence of South Africa’s history of isolation from the international community prior to the 1994 election’. ¹⁹

While these theories in some way explain the causes of xenophobia in South Africa, they are indeed just theories. The real causes are much more complex than that. As mentioned earlier, xenophobia in South Africa has its genesis in the pre-1994 apartheid era. Apartheid and colonialism were well known for their divide-and-rule tactics, which sought to impose segregation and instil hatred between and among black people. Segregation was defined as ‘the imposed separation of groups; the practice of keeping ethnic, racial, religious, or gender groups separate’. ²⁰ It is for that very reason that homelands were created in the mid-20th century. ²¹ Through this system, hatred and fear of the other were inculcated in the psyche of black South Africans.

Then came 1994 and with it, a new constitutional and democratic dispensation. This new dispensation led to the waiving of sanctions and opening up of borders to nationals from other African countries, many of whom started streaming into South Africa either in pursuit of better economic opportunities or as refugees from dysfunctional regimes torn apart by conflict. They saw South Africa as a leading economy and perhaps the most industrialised country on the African continent. Little did they realise that they were taking refuge in one of the most unequal societies in the world with a population whose majority was predominantly poor, hungry, unemployed and bitter. This bitterness was immediately turned into the newcomers’ direction. But it was not just bitterness. It was bitterness compounded with fear, hatred and anger – fear of losing their newly acquired social status and identity, hatred of people ‘invading’ and wanting to share in their newly acquired freedom and anger against the new government that was doing nothing about all this.

In a 2013 study, Carol Adjai and Gabriella Lazaridis argued that xenophobic sentiment is ‘about the politics of access; a struggle for political and socio-economic resources [and that] socio-economic factors play a vital role in increasing xenophobic sentiment’. It is submitted that one such factor is unemployment. In the context of this discussion, this is a crucial factor as contestation for jobs has a significant impact on what happens in the workplace.

Mention was made earlier of the seminal importance of the year 1994 in South African history. Not only did it usher in a new constitutional and democratic dispensation, it also created high expectations and a promise of a better life for the previously disempowered, disenfranchised and oppressed population. Jobs formed an integral part of that promise. After the 1994 elections, however, jobs not only failed to materialise, the unemployment rate started increasing steadily. According to Statistics South Africa (Stats SA), in 1994, 8.9 million people were employed, an unemployment rate of 20%. By 2018, the number of unemployed South Africans had almost doubled to 16.5 million people, an employment rate of 28.5%. ²² By the end of 2019, the unemployment rate had grown to 29.1%. ²³ The increase in unemployment rates meant an increase in the competition for job opportunities. Unfortunately, the frustration of unemployment fuelled and continues to fuel the perception that jobs are being taken by immigrants. It also fuels a perception, wrongly or rightly, that immigrant employees accept lower wages thereby undermining South African employee’s struggles for higher wages. All this, in turn, fuels resentment mainly in the workplace.

Another important factor is that some South Africans see the presence of foreigners as an infringement of their socio-economic rights. By their nature, socio-economic rights have important social and economic dimensions as most of them reflect specific areas of basic needs or delivery of particular goods and services. Such services include housing, education, social welfare and health care. Issues of poor service delivery in South Africa are well documented. So too are the related service delivery protests. The perception is often created that immigrants place an inordinate burden on the limited social and economic services thereby depriving deserving South Africans of their right to access these services and consequently infringing on their socio-economic rights.

The high crime rate in South Africa is also an important factor. Indeed South Africa’s crime statistics are extremely worrying. According to Statistics South Africa (Stats SA), for example, in 2018/2019 there were about 260 000 incidences of home robberies, 83 000 incidences of theft of motor vehicles, 12 000 murders, 500 000 incidences of assault, 1.2 million incidences of theft of personal property and about 580 000 incidences of street robbery, among other crimes. ²⁴ What does this have to do with xenophobia? Unfortunately, immigrants, have become scapegoats for crime in South Africa with both political leaders and the police unashamedly fuelling that perception. As far back as 2001, a study by the Centre for the Study of Violence and Reconciliation (CSVR) found that police actions usually fuel xenophobia within South African society by regularly conflating crime and undocumented migrants. ²⁵ In 2006 another CSVR study revealed ‘pervasive xenophobic attitudes among police officers’. ²⁶ According to the study, 87.1% of the police respondents ‘agreed with the statement that most of the illegal or undocumented immigrants in Johannesburg are involved in crime’. ²⁷

Of all the factors responsible for the increase in xenophobia, however, poverty and inequality play the most important role. As far back as 2008, a study by the Human Sciences Research Council (HSRC) found that poverty exacerbates tensions between South Africans and foreigners. ²⁸ It argued that the dynamics in the informal settlements around economic livelihoods presented formidable challenges. So too did the long term effects and severe social consequences of the dire economic conditions, unemployment, poverty and lack of skills among South Africans. According to the study, ‘multiple tensions arise where the poorest of the poor are competing for resources and trying to survive in an uncertain economic environment as food prices spiral and employment possibilities are extremely insecure’. ²⁹ The study further found that there was a strong perception in the informal settlements that foreigners were taking jobs of South Africans and that foreigners were willing to work for a lower wage than South Africans were, ³⁰ an issue alluded to earlier.

The depth and breadth of this paper do not lend themselves to a detailed discussion of all the causes of xenophobia in South Africa. Suffice to say, however, that from the foregoing discussion, it is clear that the factors that contribute to xenophobia in South Africa range from social issues to diversity issues, economic issues and geopolitical issues. It is in that context and against that background that the legal framework and the pertinent human rights implications of xenophobia in the South African labour market must be seen. Before turning to that aspect, however, a brief look at the international dimension is necessary.

The international dimension

A number of international human rights instruments contain provisions that are directly or indirectly relevant to xenophobia. First and foremost, Article 2(2) of the International Covenant on Economic, Social and Cultural Rights ³¹ provides that the States parties

undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In the specific African context, Article 2 of the African Charter on Human and Peoples’ Rights states that:

Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

In the specific context of labour law and the workplace there are some international treaties whose provisions are relevant to xenophobia. The most relevant of these is the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. ³⁷ Article 7 of that Convention deals with non-discrimination with respect to rights and a number of provisions specifically refer to migrant workers’ right to equality with nationals of the State concerned. These include Articles 18(1), 25, 28, 30, 43, 45, 54 and 55. All these provisions speak to the equality of treatment of migrant workers with nationals of the state of employment in respect to a range of things including protection of the law, conditions of work and access to educational, health and other social services.

Also relevant are several International Labour Organisation (ILO) conventions and recommendations the most important of which are: the Migration for Employment Convention of 1949 (No. 97), ³⁸ the Migration for Employment Recommendations of 1949 (No. 86), ³⁹ the 1958 ILO Discrimination (Employment and Occupation) Convention, ⁴⁰ the Migrant Workers Convention of 1975 (No. 143), ⁴¹ and the Migrant Workers Recommendation of 1975 (No. 151). Of particular importance is the Migrant Workers Convention of 1975 (No. 143) as it is aimed at promoting equality of opportunity and treatment of migrant workers and protecting them from working in abusive conditions.

It is important to note that South Africa has ratified all the above-mentioned United Nations international treaties and conventions and is therefore bound by them. However, despite the fact that South Africa was a founder member of the ILO in 1919 and has ratified many ILO conventions and recommendations, it has inexplicably failed to ratify the Migration for Employment Convention of 1949 (No. 97) and the Migrant Workers Convention of 1975 (No. 143). This, unfortunately, can be interpreted as a lack of seriousness on the part of South Africa, in promoting and protecting the rights of migrant workers – and by extension – in combating and preventing xenophobia in the workplace.

The constitutional and human rights context

A number of provisions in the South African Constitution are relevant to xenophobia and the treatment of foreign employees in the workplace. To begin with, the preamble of the Constitution categorically states that ‘South Africa belongs to all who live in it’ a statement that is historically poignant, aligned as it is, to the 1955 Freedom Charter. ⁴² The opening section also signals the intention of the Constitution to ‘establish a society based on democratic values, social justice and fundamental human rights’. ⁴³

Secondly, the Constitution contains a Bill of Rights that incorporates all categories of human rights that are ordinarily recognised by the main international human rights instruments. These include civil and political rights, socio-economic rights and the so-called third-generation rights. It must be pointed out that only three provisions in the Bill of Rights contain rights that are exclusive to South African citizens, namely, section 19 (which provides for political rights such as the right to vote, form a political party, etc.), sections 21(3) and 21(4) (which provide for the freedom to enter and reside in the country and the right to a passport), and section 22 (which provides for freedom of trade, occupation and profession). All other rights belong to ‘everyone’, foreign workers included. Such rights include the usual civil rights to equality, life, human dignity and privacy. They also include freedom of security of the person, freedom of expression, assembly, religion and association among others. Similarly, no distinction is made in the Constitution between citizens and non-citizens in relation to socio-economic rights. In that regard, foreign workers, like everyone else, are entitled to property rights, adequate housing, health care, social security and education, to mention but a few. Mention should also be made of rights relating to administrative justice, access to information and access to courts.

Of all the rights in the South African Bill of Rights, however, the most relevant to xenophobia and foreign employees in the workplace, are the right to equality (section 9) and the rights pertaining to labour relations (section 23). Section 9(1) of the Constitution provides that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’. Section 9(3) prohibits the state from unfairly discriminating against anyone on certain listed grounds including ethnic or social origin and birth. Section 9(4) extends the prohibition to the horizontal level by prohibiting unfair discrimination among private individuals. This is particularly relevant as xenophobia mainly occurs between individuals. Constitutionally therefore, foreign workers should not be unfairly discriminated against both by the state and their fellow employees.

Section 23 of the Constitution deals with labour relations. Under section 23(1) ‘everyone has the right to fair labour practices’. The reference to ‘everyone’ might appear misleading as the section clearly refers to the relationship between employees and employers. Nevertheless, what is important here is that foreign employees are included. Both sections 9 and 23 provide for legislative frameworks within which the rights in those sections can be exercised. In the case of the right to equality, section 9(4) provides for the enactment of national legislation to prevent or prohibit unfair discrimination particularly between private individuals. In the case of labour relations, section 23(5) requires the enactment of national legislation to regulate such relations. A discussion on the legislative context now follows.

The legislative context

The statute enacted in pursuance of section 9(4) of the Constitution was the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000). Its stated objective is ‘to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination;…’ ⁴⁴ among other things. Section 34(1) of the Act requires the Minister (of Justice and Constitutional Development) to consider including ‘nationality’ among ‘prohibited grounds’ (upon which a person may not be discriminated). The Act defines ‘nationality’ as ‘ethnic or national origin and includes practices associated with xenophobia and other adverse assumptions of a discriminatory nature…’. ⁴⁵ Apart from this passing reference to xenophobia, PEPUDA does little or nothing to address the problem of xenophobia generally, let alone in the workplace.

The statute enacted in terms of section 23(5) of the Constitution (initially in pursuance of section 27 of the Interim Constitution) was the Labour Relations Act (66 of 1995). Besides giving effect to constitutional labour rights, the Act is mainly intended ‘to provide a framework within which employees and their trade unions, employers and employers’ organisations can collectively bargain’. ⁴⁶ It is important to note however, that the Act defines an employee as ‘any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer…’. In terms of this definition, foreign nationals are entitled to the protection afforded by the Labour Relations Act as they are not excluded by the definition of ‘employee’. This brings into sharp focus another important statute relevant to foreign employees – the Immigration Act (13 0f 2002).

The Immigration Act is the central statute that regulates the admission, residence and departure into and from the country. It is aimed at ‘setting in place a new system of immigration control which ensures [among other things] that…xenophobia is prevented and countered both within Government and civil society’. ⁴⁷ Firstly, the Act does not specify how this is to be achieved. Secondly, despite this commitment, section 38(1) of the Immigration Act provides that:

No person shall employ

 (a) an illegal foreigner;

 (b) a foreigner whose status does not authorise him or her to be employed by such person;

 (c) a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.

Another important South African statute relevant to xenophobia in the labour market is the Employment Services Act (4 of 2014). It states as one of its objectives ‘…to facilitate the employment of foreign nationals in the South African economy, where their contribution is needed…’. Simply put, one of its objectives is to regulate the employment of foreign nationals. Sections 8 of the Act deals with the employment of foreign nationals. Under section 8(1), an employer may not employ a foreign national without a valid work permit, and in terms of section 8(2)(a), employers must satisfy themselves that there are no other persons in the country with suitable skills to fill a vacancy, before recruiting a foreign national. It is not clear how employers are required ‘satisfy themselves’ and, as a result, this requirement has led to all sorts of complications in the processing of applications for work permits resulting in unnecessary delays and rejection of applications.

It is important to note that under the Employment Services Act, an employment contract between an employer and an employee who has no work permit is valid and enforceable. Under section 8(4) of the Act:

An employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law.

Also quite relevant to the rights of foreign workers and xenophobia in the workplace is the Employment Equity Act (55 of 1998). Section 6(1) of the Act sets out a number of prohibited grounds against which an employee may not be discriminated. These include race, ethnic or social origin, colour, culture, language and birth, to mention but a few. Under section 6(3), ‘harassment of an employee is a form of discrimination where the harassment is based on any one of the grounds listed in section 6(1)’. Moreover, section 60 provides for the ‘vicarious liability of the employer in cases of acts of harassment committed by employees on fellow employees’. ⁵⁰ This would appear to provide some protection against xenophobic attacks and harassment of foreign employees by fellow South African workers. This, however, is cold comfort considering that the purpose of the Employment Equity Act is to reserve employment for ‘designated groups’ which, essentially, exclude foreign nationals.

Although, as mentioned earlier, the Immigration Act (13 of 2002) is the central statute that regulates immigration into South Africa, the Refugees Act (13 of 1998) ‘is generally considered to be a more progressive piece of legislation’. ⁵¹ Whereas the Immigration Act has been criticised for ‘being too focused on the reduction of illegal immigration through repressive forms of law enforcement’, ⁵² the Refugees Act has been praised for allowing anyone to apply for asylum and providing that no person should be denied the right to do so. It is important to note that section 27(b) of the Act provides that refugees enjoy full legal protection of their rights, including those set out in the Bill of Rights. More significantly, and in the context of this discussion, section 27(f) provides that refugees are entitled to seek employment. They are also ‘entitled to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time’. ⁵³ It was earlier mentioned that competition for employment and for limited social and economic services are perceived as some of the main causes of xenophobia in South Africa.

It is clear from the foregoing discussion that the existing legislative framework is insufficient or lacking in its ability to deal with xenophobia generally and in the workplace and labour market specifically. Despite that serious shortcoming a number of cases involving xenophobia have come before the courts, and it is to that judicial context that we now turn our attention.

The judicial context

The role of the judiciary in enforcing the rights of immigrants and alleviating the bane of xenophobia in and out of the workplace cannot be emphasised. According to Thomas Hick, ‘the judiciary remains the only viable power to turn back the tide of xenophobia by embracing the 1996 Constitution to affirm immigrant rights’. ⁵⁴ Hick sees the judiciary as ‘the vanguard’ and ‘the only viable entity to which immigrants can petition to have their constitutional rights fully recognized’. ⁵⁵ True to its role, the judiciary has pronounced on several matters involving xenophobia and the rights of immigrants in South Africa.

One of the earliest cases to come before the Constitutional Court involving the rights of foreign workers was Larbi-Odam v. MEC for Education (North-West Province) ⁵⁶ in which the Court held that a provincial regulation forbidding immigrants (including permanent residents) from taking up permanent teaching positions in state schools was unconstitutional. The Court found the regulation to be invalid on the grounds that it constituted unfair discrimination inconsistent with the equality provision of the (then) interim Constitution.

Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others ⁵⁷ dealt with the rights of refugees to work in the private security industry in South Africa. The applicants contended that section 23(1)(a) of the Private Security Industry Regulation Act ⁵⁸ which listed citizenship and/or permanent residence as a requirement for registration, constituted a violation of their right to equality and discriminated against them on the basis of their citizenship. Strangely, the majority decision of the Court was that the applicants’ right to equality was not violated because section 22 of the Constitution limits the right to choose a vocation to citizens only. In a joint dissenting judgment, however, Mokgoro J and O’Regan J, felt that section 23(1)(a) of the Private Security Act indeed discriminated unfairly on the basis of refugee status. Their view was that legislation in South Africa must not promote xenophobia.

Also important in the context of employment discrimination is the case of Minister of Home Affairs and Others v Watchenuka and Others ⁵⁹ which dealt with the rights of asylum seekers and in particular ‘the extent to which they may be prohibited from being employed while they are waiting to be recognised as refugees’. ⁶⁰ The Court held that such prohibition was unlawful and fundamentally violated the right to human dignity especially ‘where employment is the only reasonable means for the person’s support…’. ⁶¹ The prohibition, according to the Court, ‘would severely restrict asylum seekers’ ability to support themselves and their families and to live without positive humiliation and degradation’. ⁶²

A similar ruling was made in the case of Somali Association of South Africa and others v Limpopo Department of Economic Development, Environment and Tourism and Others ⁶³ which concerned the rights of refugees and asylum seekers lawfully present in South, to earn a living by way of self-employment. The respondent’s argument was that while refugees and asylum seekers were, in terms of section 27 of the Refugees Act, allowed to seek employment, they had no right to engage in self-employment as such a right was reserved for only South African citizens in terms of section 22 of the Constitution. The Court held, inter alia, that closing down businesses of refugees and asylum seekers would impair their right to human dignity, render them more desperate and destitute, and also condemn them to a life of humiliation and degradation. ⁶⁴ The Court specifically stated that: ‘The authorities must also guard against unwittingly fuelling xenophobia’. ⁶⁵

There are several other cases which did not deal directly with workplace discrimination but have a bearing on xenophobia and the rights of foreign nationals. In Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others, ⁶⁶ for example, the Court upheld the challenge to the provisions of the Social Assistance Act ⁶⁷ which disqualified non-South African citizens from receiving certain welfare grants. The Court held that the exclusion of permanent residents from the social welfare scheme was discriminatory and unfair and infringed the right to equality.

Similarly, in Kiliko and Others v Minister of Home Affairs and Others ⁶⁸ 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 South African citizens’. ⁶⁹ The case dealt with the procedure for processing asylum seekers’ permits and whether such procedure was consistent with the fundamental rights of asylum seekers.

Other cases include Abdi and Another v Minister of Home Affairs and Others in which the Court ordered the release of two applicants who were being held in inadmissible facility at the OR Tambo International Airport and declared that they be allowed to remain in South Africa in accordance with their status as asylum seeker and refugee respectively. The cases also include Lawyers for Human Rights v Minister of Home Affairs ⁷⁰ in which the Court rejected the state’s argument that persons illegally in the country had no rights and were protected only by international law and Lawyers for Human Rights v Minister of Home Affairs and Others ⁷¹ wherein the Court found sections 34(1)(b) and (d) of the Immigration Act ⁷² governing aspects of detention and deportation unconstitutional.

Recommendations and concluding remarks

It is clear from the foregoing discussion that the courts have played and continue to play a significant role in protecting the rights of foreign nationals generally and foreign employees specifically. The courts usually do this through their law-making powers of interpreting legislation, developing the rules of the common law, and adjudicating constitutional and other challenges that are intended to advance those rights. It is also clear, though, that the existing legislative framework is insufficient, inadequate and unable to match the courts’ efforts in this regard. Any recommendations have to take that into account. Several other challenges also have to be borne in mind.

The most obvious recommendation is for the government to address all the causes of xenophobia discussed earlier. That would require addressing the current socio-economic and societal challenges of unemployment, poverty, inequality and crime. It would also require that the political and economic conditions of the migrant countries improve to such an extent that potential immigrants prefer to stay in their countries and immigrants to return home. This, obviously, is easier said than done.

Whereas government should play a leading role in addressing xenophobia and attacks against foreign nationals, there is plenty of documented evidence to show that politicians and government leaders do actually contribute to fuelling xenophobic attacks. ⁷³ In 1994, for example, the Minister of Home Affairs is reported to have stated that:

If South Africans are going to compete for scarce resources with the millions of “aliens” that are pouring into South Africa, then we can bid goodbye to our Reconstruction and Development Programme. ⁷⁴

The reluctance to enact adequate legislation that deals with xenophobia is reflected in the process of enacting the Prevention and Combating of Hate Crimes and Hate Speech Bill. ⁷⁷ Although the Bill was introduced in the national Parliament more than 2 years ago, it is yet to see the light of day. More importantly however, although the Bill purports to ‘give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance’, ⁷⁸ it says very little about xenophobia. In fact the word ‘xenophobia’ is mentioned only twice – in the long title and in the preamble. If eventually passed into law, the Bill will do nothing at all to address the problem of xenophobia in South Africa.

By way of recommendation, what is really required is the enactment of a law that is specifically aimed at xenophobia including xenophobia in the labour market. This will first require a change of mindset and mentality among politicians, government leaders and legislators. It will also require true and visionary leadership at local and national level – a leadership that is not xenophobic itself.

The current lack of such leadership is exemplified by the draft Gauteng Township Economic Development Bill ⁷⁹ that is currently before the Gauteng provincial legislature. The Bill proposes the banning of all those who are not South African citizens or who have no permanent residence status from operating certain businesses in Gauteng townships. Section 7 of the Bill deals with ‘economic activities reserved for citizens of or persons with permanent residency status in the Republic’. Section 7(2) states that:

The business activities that are designated in column 3 of Table A of Schedule 2 are, in a designated township, exclusively and solely reserved for ownership and operation by a citizen of, or a person who has permanent residency status in, the Republic.

In the specific context of xenophobia in the workplace, it is recommended that inequality and exploitation should be addressed as they are some of the main factors that fuel xenophobic tensions in the workplace. This can be done by creating space for dialogue and introducing awareness programmes to educate employees against xenophobia in the workplace. Employers and responsible government leaders should condemn xenophobia and use public platforms to change xenophobic attitudes and practices. Workplace policies that promote xenophobia should also be reviewed and changed.

In conclusion, despite the existence of all the legislation referred to earlier, xenophobia is not a crime in South Africa. Accordingly, in terms of the current legal framework no-one in South Africa can technically be prosecuted or convicted of xenophobia. All those that have been brought to court for xenophobic attacks have been tried for offences such as assault, looting, destruction of property, violence or murder – not for xenophobia. Although the proposed Prevention and Combating Hate Crimes and Hate Speech Bill referred to earlier, tends to criminalizes xenophobia, it falls far too short and lacks the gravitas of what a specific statute on xenophobia would achieve. In all likelihood, the Bill may never see the light of day as it was first introduced in 2016 but collapsed in Parliament when it was last tabled.

In the context of xenophobia in the workplace, a statute on xenophobia should, among other things, oblige employers to thoroughly investigate all reported instances of xenophobia and discipline delinquent employees when appropriate. Employers should also be legally obliged to take steps to prevent emerging forms of discrimination and xenophobia brought about new and changing circumstances such as the CORVID-19 pandemic. Ultimately, a multifaceted approach involving employers, employees, civil society, political leaders, lawmakers and the judiciary is the best hope in ensuring the protection of the rights of foreign employees and reducing or preventing xenophobic attacks against them.