SOUTH AFRICA HAS A CONSTITUTIONAL DUTY TO PROTECT EVERYONE FROM XENOPHOBIC VIOLENCE

RULE OF LAW MUST PREVAIL: South Africa Has a Constitutional Duty to Protect Everyone from Xenophobic Violence and Hate Crimes

The Hate Crimes Working Group (HCWG) is deeply alarmed by the escalation of xenophobic violence, intimidation and hate speech directed at migrants and refugees in parts of South Africa.

South Africa has every right, as a sovereign state, to regulate immigration, secure its borders and enforce its immigration laws. Individuals who are unlawfully present in the country must be dealt with through lawful administrative and judicial processes in accordance with the Constitution and legislation.

However, no grievance regarding immigration justifies mob intimidation and mob violence.

Over recent weeks we have witnessed organised groups engaging in intimidation, assaults, forced displacement, destruction of property and public statements that appear to encourage hostility and violence against people because of their nationality or perceived nationality. Where these acts are motivated by prejudice against a protected group, they may constitute hate crimes under South African law. In addition, offences such as assault, intimidation, arson, malicious damage to property, robbery, public violence and murder are crimes punishable by South African law.

South Africa is founded on the rule of law. Decisions about immigration status belong to the State—not to self-appointed individuals or violent mobs.

Constitutional Duties

The Constitution places positive obligations on every organ of state.

Section 205(3) of the Constitution requires the South African Police Service (SAPS) to:

prevent, combat and investigate crime;
maintain public order;
protect and secure the inhabitants of the Republic and their property; and
uphold and enforce the law.

Importantly, the Constitution refers to “inhabitants of the Republic”, not only citizens.

THE BILL OF RIGHTS guarantees fundamental rights to everyone, including the rights to equality (section 9), human dignity (section 10), life (section 11), freedom and security of the person (section 12), and access to courts (section 34).

The State therefore has simultaneous constitutional obligations to:

enforce immigration laws;
prevent assault, murder and intimidation;
investigate criminal conduct;
prosecute offenders; and
protect everyone from unlawful violence.

These responsibilities are complementary—not mutually exclusive.

HATE CRIMES AND HATE SPEECH

The HCWG reminds the public that South Africa has enacted the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.

Whether conduct constitutes a hate crime or a hate speech offence depends on the facts and the legal requirements of the Act. However, organised violence, intimidation or criminal conduct and speech motivated by prejudice against people because of their nationality, ethnicity or related protected characteristics may engage this legislation in addition to the ordinary criminal law.

There is an important legal distinction between:

lawful advocacy for changes to immigration policy;
peaceful protest conducted within the law;

as opposed to:

criminal conduct involving intimidation, incitement, violence or destruction of property.

No person or organisation is above the law.

SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS

South Africa has voluntarily accepted binding international and regional obligations requiring the protection of human rights and the prevention of discrimination and violence.

These include:

UNIVERSAL DECLARATION OF HUMAN RIGHTS, which affirms the rights to life, liberty, security and equal protection of the law.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, requiring States to protect life, security and equal protection without discrimination.
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, requiring States to combat racial discrimination and incitement to racial hatred.
1951 REFUGEE CONVENTION and its 1967 Protocol Relating to the Status of Refugees.
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS.
AFRICAN UNION CONVENTION Governing the Specific Aspects of Refugee Problems in Africa.

These obligations do not prevent South Africa from enforcing its immigration laws. Rather, they require that enforcement occur lawfully, fairly and without intimidation, violence or discrimination.

Therefore, the HCWG calls upon:

SAPS to fulfil its constitutional mandate by preventing mob violence, protecting communities, investigating criminal offences impartially and arresting perpetrators where there is sufficient evidence.
THE DEPARTMENT OF HOME AFFAIRS to strengthen lawful immigration enforcement while ensuring compliance with constitutional safeguards.
THE NATIONAL PROSECUTING AUTHORITY to prosecute those responsible for assaults, intimidation, arson, murder, public violence, incitement and hate crimes where the evidence supports such charges.
PARLIAMENT to exercise effective oversight over the implementation of immigration laws, policing and the protection of constitutional rights.

HOW THE PUBLIC CAN HELP

The public plays a vital role in documenting incidents lawfully and safely. Evidence can assist criminal investigations, oversight bodies and human rights institutions.

If it is safe to do so, members of the public should:

Record clear videos or photographs showing incidents, avoiding editing or adding commentary to the original files.
Note the date, time and precise location.
Identify streets, landmarks or GPS coordinates where possible.
Record vehicle registration numbers.
Photograph damage to homes, businesses or vehicles.
Preserve threatening pamphlets, posters or written communications.
Capture public speeches or livestreams that may contain incitement to violence or hatred.
Save screenshots of social media posts, including usernames, dates, times and URLs.
Record names and contact details of willing witnesses.
Seek medical examination promptly where injuries have occurred and retain medical records.
Keep copies of police case numbers and any correspondence with authorities.
Back up all evidence securely and avoid altering the original files.
Do not place yourself or others at risk to obtain evidence.

Evidence may be submitted to:

SAPS for criminal investigation.
The Independent Police Investigative Directorate where there are allegations of police misconduct or failure to act.
The South African Human Rights Commission for complaints relating to human rights violations and possible hate speech.

If you need assistance call:

Immigration Detention & Crisis Hotline: Toll free – 0800 079 614 / WhatsApp: 081 716 8791

XenoWatch : 060 794 9882

For more information follow Lawyers for Human Rights social media.

A CALL FOR CALM

South Africa cannot allow fear, misinformation or frustration to replace the rule of law.

The Constitution provides mechanisms to address unlawful immigration. It also requires the State to protect every person from violence and to hold offenders accountable.

The HCWG calls on all political leaders, community leaders, civil society organisations and members of the public to reject xenophobic violence, reject hate speech, and support lawful, evidence-based solutions that strengthen both public safety and constitutional democracy.

South Africa cannot defeat lawlessness by becoming lawless. If we expect others to respect our laws, we must respect them too. South Africa cannot be a place of prejudice, discrimination, intimidation and violence. We must lead our country with accountability for all, with a dedication to human rights, with pride in our own Constitution, and with the unwavering application of our laws, in conjunction with fairness and justice.

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