In post-apartheid South Africa, the system has evolved but has fundamentally stayed the same, triggering an inter-generational cycle of displacement. (Fredrik Lerneryd)
Xenophobia is back on the table: the Economic Freedom Fighters programme to check the ratio of South African to foreign employees at restaurants has prompted a heated public discourse. Where exactly is the line drawn between democratic care for South Africans and being xenophobic? And who is driving this line: disillusioned citizens or manoeuvring political parties — or, of course, a combination of both?
If we are to meaningfully tackle xenophobia we need, too, to get the department of home affairs in order, both in its practical running and in line with its legislative and constitutional obligations.
My analysis of South African citizenship law suggests the department is “shrinking South Africa”, making it increasingly difficult to acquire citizenship. This is both through legislative amendments and, most concerningly, through overreach on the part of the department.
For example, the department has failed to create regulations to allow for the functioning of some parts of legislation — such as the statelessness clause in the South African Citizenship Act, for which there is still no provision in the latest 2020 draft regulations — and to create regulations that, in effect, increase requirements (such as the blanket 10-year residency requirement for naturalisation that goes beyond legislative requirements).
Although civil society frequently and successfully challenges the department in court, the department has repeatedly dragged its feet in becoming compliant with court orders.
We also know the waiting times at the department are atrocious, the processes confusing and, often, the experience of those seeking documentation is deeply hostile. After the 2010 amendment to the Citizenship Act, there are young people who were born in South Africa to permanent residents who are not eligible to apply for citizenship until they are 18, robbing them of the full protections and opportunities of citizenship in the only country in which they have lived.
Nearly 180 000 Zimbabweans living and working in South Africa on special exemption visas face constant uncertainty regarding the renewals of their permits, currently valid until the end of 2022. These residents have lived in South Africa for more than 10 years without recourse to naturalise and so formalise their commitment to life and work in South Africa — and have their voice heard in the democratic project.
The regulations on the Refugee Amendment Act also speak to a suppression of the voice of the most vulnerable residing in South Africa with a clause that permits the revocation of refugee status on the grounds of participating in any political protest or activity.
Foreigners face extreme procedural hostility in South Africa, and it is correct to worry about the ways that employers can exploit those who find themselves in uncertain and undocumented situations — as the EFF claims is their concern. Such exploitation has little to do with ratios of South Africans to foreigners in workplaces and should rightly be dealt with by the enforcement of labour regulations. But, we need to also notice the role that procedural hostility at the home affairs department plays in creating this vulnerability in the first place.
The original South African Citizenship Act of 1995 was inclusive in spirit following a Constitution that sought rights for “all people in our country” and an understanding of the interconnectedness of many who lived in exile or did not have rights to citizenship under the apartheid regime. Have we paid attention to just how far we have moved away from this commitment to a just and inclusive citizenship?
If we are to truly work to stem the tide of xenophobia in South Africa, we need a department of home affairs that provides transparent, efficient, and fair services that, at the very least, align with current citizenship legislation. Our democracy cannot afford to continue with the current creation of a vulnerable class of residents without the protections of stable, transparent, and fair routes to permanent residence and citizenship.