In recent months, several South African neighbourhoods have erupted in a spate of xenophobic violence. This is not the first time that sections of South African society have violently turned on their African brethren. In 2008 there were similar outbreaks of violence against African foreign nationals. While these instances of individuals attacking foreigners is deeply troubling, the State’s behaviour towards African immigrants, refugees and , asylum seekers presents as much, if not more, cause for concern. In April and May 2015, in the midst of the xenophobic attacks, the South African Police Services (SAPS) and South African National Defence Force (SANDF) launched “Operation Fiela” with the stated objective of ridding certain neighbourhoods of illegal guns, drugs and prostitution rings. Under the guise of Operation Fiela, police officers have targeted foreign nationals in raids across the country. During the course of these raids approximately 3,900 arrests were made and of them 1,600 were undocumented African migrants and yet statements by senior government officials have denied any xenophobic objective for these actions.

When Lawyers for Human Rights (LHR), a human rights advocacy and litigation group based in Johannesburg representing many of the detained foreign nationals, attempted to consult with their detained clients they were barred from doing so by the police and were forced to obtain a court order in order to meet with their clients. Fearing that several of their clients had already been unlawfully deported, LHR again appeared in court to obtain interdicts preventing any such deportation. Despite the interdicts, several detained immigrants were unlawfully deported without any form of hearing or legal representation.

Unfortunately, this is not the only incident in which the rights of foreign African nationals have been ignored by the police during the course of conducting an operation with an ostensibly legitimate purpose. Nor is it the only attempt made by the State to argue that foreign nationals have drastically different rights to South African citizens. In 2012, in Limpopo, the police initiated a policy called “Operation Hardstick” with the aim to close businesses that were operating without requisite permits. In carrying out this policy, police closed 600 businesses, many with valid licenses, confiscated equipment and stock, and arrested traders and their employees.  During these raids, police further told traders, predominantly of Somali and Ethiopian origin, that foreigners are not permitted to operate businesses in South Africa and should leave the municipality.

The matter was brought before the courts by several Somali and Ethiopian community organisations and individuals. They asserted that as refugees or asylum seekers they were entitled to apply for and be granted licences to trade as small shopkeepers.  Furthermore, they argued that they had the right to be treated with dignity, as enshrined in the South African Constitution and that by depriving them of a legitimate source of income, police action led to the decline in their standard of living and thus deprived them of their dignity.

Various national and provincial state institutions and ministers which stood as respondents in the matter contended that asylum seekers and refugees do not have the same rights as South African citizens and that, specifically, the right to self-employment is reserved exclusively for South African citizens. The matter eventually reached the Supreme Court of Appeal which handed down a judgment in September 2014. The Court prefaced its judgment with a description of instances of xenophobic pressure exerted by local business forums on the State before Operation Hardstick was adopted and which presumably contributed to the manner in which the police carried out the policy.  The Court further pointed out that the targeting of businesses which held valid licences was done despite the fact that the policy’s stated objective was the removal of unlicensed businesses. The SCA relied upon previous Constitutional Court judgments which recognise that rights extend to non-nationals, including illegal immigrants, while present in South Africa, except for those that refer specifically to citizens. This includes the right to dignity and, with only a few rational exceptions, the right to seek employment.

The actions of the police services in conducting both Operation Fiela and Hardstick, as well as the unheeded judicial rulings, indicates that, at least with respect to the human rights of foreign nationals, the South African Constitution and the norms it enshrines are yet to adequately infuse bureaucratic decision-making.