What is the Law on Xenophobia?

As contentious as it is to note, it must be said that South Africa has had a long and sordid history concerning xenophobia. The list of attacks against foreigners throughout the nation continues to grow with every passing year and includes everything from isolated cases of abuse to the systematic targeting of foreign-owned businesses and rioting. It should come as no surprise then, that many citizens feel a deep-seated concern over the treatment of non-residents and the rules which protect them. But what does the law say exactly? Are there laws against xenophobia and how is it policed in South Africa?

On paper, xenophobia is extensively prohibited by various pieces of legislation, most notably these include –

• The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
• The Refugees Act 130 of 1998
• The Protection from Harassment Act 17 of 2011
• The Immigration Act 13 of 2002

That first act specifically notes the ‘prohibited grounds’ upon which individuals may not be discriminated against and this prohibition includes social or ethnic origins. Additionally, a National Action Plan exists which is intended to serve existing legislation in a ‘complementary’ manner. As if all this wasn’t enough, the South African constitution also outlines certain fundamental human rights that are afforded to all individuals regardless of whether or not they are SA citizens.

In the eyes of the constitution then, foreigners, whether here legally or not, are protected by many of the same laws as SA citizens and should not be subjected to violence or unfair discrimination. However, when carried out in practice, xenophobia is often overlooked by the legal system, which instead focuses on punishing criminal acts without paying much attention to the underlying motives.

How is Xenophobia Punished in South Africa?

According to Judge Mojapelo xenophobia itself is not a crime in South Africa and wrongdoers are instead punished for related crimes. In other words, a person who physically harms a foreigner during a xenophobic attack would not be charged with some sort of xenophobia conviction and would instead be arrested and prosecuted on the grounds of a common-law crime such as assault.

We can review real-world examples of this by considering cases involving xenophobic attacks that have occurred in the past, for instance, Mido Macia died in custody after he was caught on camera being handcuffed to the back of a police vehicle and dragged along the road. Following the event, 8 police officers were arrested and it was alleged that Mido was beaten once inside the police station. During the subsequent trials, the police officers were found guilty of murder and charged accordingly but were not explicitly punished for xenophobia.

Many critics argue that xenophobia is akin to racism and should thus be criminalised in the same way. They point out that many xenophobic attackers can pay a fine rather than face a prison sentence, a fact which would change if xenophobia were prosecuted similarly to racism.

Is Xenophobia on the Rise in South Africa? – What is the Law on Xenophobia?

While reports of xenophobic attacks have increased over the decades, this rise is not consistent from year to year with multiple peaks and lulls occurring recently.

In 2008, widespread outbreaks of xenophobic attacks occurred throughout the country, marking a high point for the violence overall. Since then, however, xenophobic reports have not reached the same levels and, while it may be argued that the issue has become more prevalent generally, there is not an apparent trend upwards unless the data is considered over a range of many years.

What are the Causes of Xenophobia?

While xenophobic attacks should never be excused or dismissed out of hand, it would be overly naive to not consider the real-world effects that influence and incite them.

• Unemployment – The foremost problem spurring on xenophobia in South Africa is the issue of unemployment and the unfortunate competition for resources which it creates. South Africa currently suffers from one of the worst levels of unemployment on the planet, a fact which breeds an extreme and brutal level of struggle, especially amongst those in low income areas. With so few jobs up for grabs, it makes sense that locals will commonly view foreigners as a kind of extra competition that ultimately hurts their chances for employment. The natural response for many is to try and force the foreigners to leave and return to their own countries. Whether this is done by intimidation or physical violence, the effect is that many foreigners, especially those living in low income areas, feel persecuted and oppressed by many of the nation’s natural-born residents.

• Stereotypes – Xenophobic behaviour is also influenced by various stereotypes regarding foreigners. For example, a 2016 study found that around 66% of surveyed South Africans believed that immigrants caused an increase in the country’s crime rate. Many individuals also believe that an influx of foreigners into the country can cause increased levels of corruption and general violence.

• Scapegoating – Throughout political history, a common but effective tactic when faced with complaints or threats to leadership is to place the blame on an ‘exterior’ group. Some victims of xenophobia believe that hatred is inflamed towards them in an attempt to distract the general populace from the real causes of corruption and poor service delivery that are so prevalent throughout South Africa.

Regardless of the underlying cause, xenophobia is an issue that many groups have tried to tackle in the past, often with middling to underwhelming successes. This raises the question – How can we really combat xenophobia in South Africa?

How can Xenophobia be Stopped? – What is the Law on Xenophobia?

Different researchers and activist groups have long since developed their own methods for dealing with and attempting to prevent instances of xenophobia. That said, perhaps the most commonly adopted technique is the Human Science Research Centre’s (HSRC) Holistic Approach.

While this process calls for multiple strategies to be implemented by different sectors of the South African government and economy, it can most effectively be summed up as a 2-stage process that involves integrating foreigners into the South African culture and economy while simultaneously fostering an atmosphere of tolerance amongst the locals.

In Conclusion – What is the Law on Xenophobia?

While discrimination based on a person’s ethnic or social origin is prohibited by the Bill of Rights, various pieces of legislation go further in expressly condemning the different forms of xenophobia that may take place throughout the country, most notably these include –

• The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
• The Refugees Act 130 of 1998
• The Protection from Harassment Act 17 of 2011
• The Immigration Act 13 of 2002

Additionally, a National Action Plan has been formulated to assist in preventing and curtailing xenophobia throughout the nation by serving the current legislation in a complementary manner. Unfortunately, despite all these laws, xenophobia is still a major issue throughout South Africa with many critics claiming that the problem is not properly policed.

Even after considering all of the aforementioned policies, xenophobia is not prosecuted as a crime in its own right and is instead punished vicariously through common law charges such as assault or intimidation. This has led many activist groups to suggest that the act should be treated similarly to charges of racism, which, they believe, would deter future attacks while simultaneously ensuring that certain offenders cannot simply pay a fine in place of a prison sentence.

When considering trends of xenophobia over a period of many decades, the problem does seem to be increasing in frequency. That said, while the past decade or so has contained more reports of xenophobic attacks generally, no individual years have managed to surpass the levels felt during the 2008 attacks.

Many factors cause or influence instances of xenophobia but the main 3 that are usually considered include –

• High levels of unemployment
• Negative stereotypes regarding foreigners
• The use of foreigners as scapegoats to blame socio-political woes on

Likewise, many strategies have been formulated to combat xenophobia but most are usually centred around the 2-stage program suggested by the HRSC, namely –

• The integration of foreigners into the country’s culture and economy
• The fostering of a more tolerant atmosphere amongst South African citizens

While this plan may be effective in the prevention of xenophobia throughout SA, many critics argue that it has not been realistically attempted and thus the problem persists.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

Found this article interesting? Leave us your thoughts below.