Quote of the week

The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.

Martha Gessen
The New Yorker
8 October 2020

Gauteng’s anti-immigrant Bill and the problem of reinforcing societal prejudice

Last week the Gauteng Member of the Executive Council (MEC) responsible for Economic Development, Environment, Agriculture and Rural Development published the controversial Gauteng Township Economic Development Bill for comment. Among other things, the Bill seeks to reserve certain business activities in “designated townships” exclusively and solely for ownership and operation by a citizen and permanent residents. While the publication of the Bill may placate some of the Afrophobic/xenophobic voters most likely to vote for Herman Mashaba’s new anti-foreigner party, it is unlikely to pass constitutional scrutiny.

Anti-African-immigrant groups often complain when they are called Afrophobic or xenophobic. They point out that they “merely” support “orderly” immigration and other restrictions on (African) immigrants to enter, live and work in South Africa, and argue that this is not based on prejudice. Every country has immigration laws, they argue, and they are merely insisting that these be tightened and better enforced for the benefit of South African citizens.

The view that immigration is necessarily bad for South African citizens and that the tightening of immigration rules and better enforcement will necessarily benefit South Africans is – at best – controversial. Various academic studies have found that immigrants in South Africa generate jobs for locals and that immigrants contribute substantially to the South African economy.

This is not the only problem with those who complain about immigrants, as they often justify their opposition to immigration from the rest of our continent by making gross generalisations about African immigrants. These generalisations are often based on bigoted views of African immigrants, who have been accused of spreading “unknown diseases”, and, in one infamous Tweet by Herman Mashaba, of bringing “us Ebolas in the name of small business”.

Even when those who beat the anti-immigrant drum do not explicitly rely on this type of bigotry to make their case, in practice it is difficult to distinguish between “legitimate” arguments about the optimal immigration policy for South Africa, and arguments based on hatred and prejudice towards African immigrants. This is because “respectable” anti-immigrant rhetoric tends to reinforce the societal prejudices, serving as a “dog whistle” towards more extreme and violent groups.

It is in this context that the anti-immigrant provisions of the Gauteng Township Economic Development Bill must be evaluated. Section 3 of the draft legislation states that the purpose of the Bill is, among others, “to designate business activities within the township areas that are reserved for the exclusive and sole of citizens and persons who has permanent residency status in the Republic”. This is achieved by section 7(2) which states:

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.

This must be a mistake (the kind of bad legislative drafting that also bedevilled the drafting of lockdown regulations) as there is no Table A of Schedule 2. There is a Table in Schedule 1 but the column headed “Reservation for SA Citizens and Permanent Residents” is empty. This means it is impossible to know exactly which business activities the Gauteng government is planning to target. Section 7(3) of the Bill does empower the MEC (in consultation with the provincial legislature) to add new or delete listed business activities, which means it is impossible to predict what the impact of the Bill will be in the long run.

Apart from the fact that these provisions pander to the Afrophobia of some voters, there is a major constitutional problem with section 7(2). The section discriminates against a wide range of non-citizens and may therefore be in conflict with section 9 of the Constitution. Section 9(3) of the Constitution prohibits unfair discrimination on any ground, which the Constitutional Court has held includes the ground of citizenship.

In Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province)  the Constitutional Court pointed out that foreign citizens are a vulnerable minority in all countries, and have little political muscle. Citizenship is also a personal attribute which is difficult to change. This means that a court will be suspicious of legislation that discriminates against non-citizens.

This general lack of control over one’s citizenship has particular resonance in the South African context, where individuals were deprived of rights or benefits, ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race. Many became statutory foreigners in their own country under the Bantustan policy, and the legislature even managed to create remarkable beings called “foreign natives”.   Such people were treated as instruments of cheap labour to be discarded at will, with scant regard for their rights, or the rights of their families.

Section 7(2) does not discriminate against all non-citizens. Instead, it discriminates against non-citizens who are not permanent residents. This includes not only undocumented immigrants, but also documented immigrants (including immigrants married to a South African spouse) and refugees who have not yet acquired permanent residency status. While section 7(2) thus clearly discriminates against categories of non-citizens, this alone will not render the section in breach of section 9(3) of the Constitution. Section 7(2) of the Bill will only be in breach of section 9(3) of the Constitution if this “discrimination” is found to be “unfair”.

A court will weigh up all the relevant factors to determine whether the discrimination is unfair and hence unconstitutional and invalid. First, it will look at the “position of the complainants in society” and whether they have suffered in the past from patterns of disadvantage. It is easier to justify “discrimination” against a powerful group than against a vulnerable group. As noted above, non-citizens (especially from the rest of the continent) are a vulnerable group, facing extreme prejudice and even physical harm. Regular eruptions of xenophobic violence (aimed at African immigrants, regardless of whether they are documented or not, and whether they are permanent residents or not), render African immigrants particularly vulnerable.

Second, a court will look at the purpose sought to be achieved by the discriminatory provision. If the “discriminatory” provision is aimed at achieving a worthy and important societal goal, it would be easier to justify the discrimination. The stated purpose of section 7(2) – the development of vibrant township economies in Gauteng – appears to be worthy. However, the manner in which section 7(2) is formulated suggests that the clause is also aimed at placating the fears and anger harboured by some voters towards immigrants from the rest of the continent. This would not be a worthy purpose as the Constitutional Court (in Hoffmann v South African Airways)rejected the argument that discrimination can be justified to pander to the prejudices of the public, stating unequivocally: “Prejudice can never justify unfair discrimination.”

Moreover, it is hard to imagine that this Bill would have been published if the state had not failed to enforce existing immigration laws effectively, suggesting that section 7(2) is also aimed at dealing with the consequences of this failure. I can’t imagine it would be considered a worthy purpose to punish categories of non-citizens in order to address other failures of the state, a point made by the Constitutional Court in Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development.

Lastly, a court will look at the impact of the discriminatory provision on the complainants and ask to what extent it affects the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity. The more severe the impact, the more difficult to justify the “discrimination”. It is here that arguments in favour of the constitutionality of section 7(2) completely falls apart. The impact of this provision on non-citizens would be profound.

As a start, the provision is clearly overbroad. It does not only target undocumented immigrants, but also refugees and other categories of non-citizens (such as the spouses of South African citizens) who have a constitutional right to reside in South Africa.

But even more problematic is the fact that the targeting of various categories of non-citizens does not only aim at placating the xenophobic prejudices of some citizens, it inevitable also reinforces already existing societal prejudice. The Constitutional Court has often pointed out that legislation that punishes certain groups is not only harmful because it denies these groups access to financial benefits or legal rights, but also because it stigmatises the targeted group. For example, when declaring the criminal prohibition on same-sex sodomy unconstitutional, the Constitutional Court held in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others that:

The discriminatory prohibitions on sex between men reinforces already existing societal prejudices and severely increases the negative effects of such prejudices on their lives. Even when these provisions are not enforced, they reduce gay men . . . to what one author has referred to as ‘unapprehended felons’, thus entrenching stigma and encouraging discrimination in employment and insurance and in judicial decisions about custody and other matters bearing on orientation.

This is why the proposed ban is so dangerous. The potential harm posed by the Bill is not only limited to the potential financial harm faced by immigrant shop owners. The impact will potentially be felt by all foreign nationals, as it is likely to reinforce deeply entrenched societal prejudices against African immigrants. This kind of prejudice has often led to brutal attacks on foreign nationals (regardless of whether they are permanent residents or legally permitted to reside in South Africa). The harm is therefore immense.

This means section 7(2) of the Bill almost certainly discriminates unfairly against categories of non-citizens in a manner that reinforces societal prejudice. It is not possible to separate any worthy aim of the Bill (if any), with its potentially catastrophic effect.

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