South African Constitutional Citizenship
I*CON Symposium: The Evolving concept of citizenship in constitutional law
Prof Jonathan Klaaren, School of Law, University of the Witwatersrand, Johannesburg
Jonathan.klaaren@wits.ac.za
5 October 2009
Abstract:
The South African concept of constitutional citizenship draws upon national and
African traditions in addition to its firm grounding in international law. Furthermore, as
drafted, it crystallized the potential to ground national citizenship within a global order. This
potential remains apparent in the interpretations of constitutional citizenship offered thus far
in South Africa’s democracy in the doctrinal fields of equality & socioeconomic rights,
diplomatic protection, and the right to vote. In each of those fields, the dominant
interpretation is that of lawful residence citizenship, while the challenging view is of
republican citizenship. In equality and socioeconomic rights, the Constitutional Court has
followed relatively clear constitutional text and interpreted citizenship to essentially include
those with permanent residence. In diplomatic protection, the Court has taken as its
touchstone but nonetheless moved ahead of international practice to articulate a doctrine with
considerably more power than seen comparatively. Finally, in a series of right to vote cases,
with neither clear text nor external practice upon which to base itself, the Court has cautiously
tilted in favour of a citizenship concept consistent with a globalizing world.
Part I: Introduction
It is not as if there was no citizenship in South Africa before 1994 and the coming into
effect of the interim Constitution.1 Prior to the advent of its constitutional democracy, the
Republic indeed had a concept of citizenship within its constitutional tradition – but it was
largely based in statute and simply did not count for much.2 This indeed was true for its
citizens of whatever race group.3 While much of anti-apartheid discourse was cast in the
language of citizenship, it was the rights of citizenship and the practices and implementation
of a fulsome and expanded version of democracy that was demanded not the status of
1
S. AFR. (Interim) C ONST. 1993.
For the existence of a constitutional tradition before 1994, see, e.g., Zantsi v Council of State,
Ciskei & Others [1995] ZACC 9, 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) (S. Afr.). In Zantsi, the
Constitutional Court interpreted jurisdictional and judicial competence provisions of the interim Constitution in
the light of such a pre-existing constitutional tradition. The classic text on the South African legal order under
apartheid remains the work of John Dugard: J OHN DUGARD , HUMAN R IGHTS AND THE S OUTH AFRICAN
LEGAL ORDER (Princeton Univ. Press 1978). As he points out, the edifice of apartheid was primarily statutory
rather than constitutional. The four ‘pillars of apartheid’ were thus statutes regulating where people could live
(the Group Areas Act 41 of 1950), where people could travel and move within the country (the Aliens Control
Act 96 of 1991 and other pass laws), what public places people could go to (the Reservation of Separate
Amenities Act 49 of 1953), and how persons were classified according to race (the Population Registration Act
30 of 1950).
3
The rights of citizenship were largely a matter of first provincial and then national statute. See DUGARD,
supra note 2, at 59-89.
2
1
citizenship per se. Indeed, the assumption behind the oft-heard accusation leveled by blacks
against whites of having been made ‘foreigners in the land of our birth’ was the existence and
shared status of South African citizenship.4 In any case, 1994 and the advent of constitutional
democracy marked a clear new beginning and an entirely new concept of constitutional
citizenship for the South African population.5 Soon replaced by a ‘Final’ Constitution, the
interim Constitution began the important work of consolidating the various bureaucracies
regulating the movement of the hitherto separate South African populations.6 Most
importantly for the purposes of this article, it gave expression through text to that new
concept.
The best available data on the number of non-citizens in the South African population
indicates a significant and growing number but a number nonetheless less than many citizens
and domestic policymakers assume to be the case. Nonetheless, the leading scholars on the
topic frankly admit ‘No one knows how many international migrants are in South Africa, how
long they have been there, how long they stay, or what they do while they are in the country.’7
In 2007, the total number of foreign-born residents was plausibly just over 1.2 million or
2.79% of the total population out of a total population of about 45 million. Counting the total
number of temporary entries approved for purposes of work, study, business, holiday,
contract, border traffic, transit, general
and other categories reveals that between 9 and 10 million were granted in 2007. This would
mean that temporary permits equivalent to 20% of the population were granted in a single
calendar year. In terms of the asylum system first implemented in 2001, at the end of 2007
there 170,865 asylum seekers while in its seven-year reign only 36,736 people had been
recognised as refugees in terms of the Refugees Act 103 of 1998. The statistical picture
would not be complete without referring to the large and increasing numbers of deportations.
This annual figure reached 266,067 in 2006, constituting largely deportations to Zimbabwe.
While the available data mixes domestic (e.g. province to province) and international
migrants, the spatial distribution of these migrants is also significant. As Landau and wa
Kabwe-Segatti note, while ‘much of the international migration [previously] concentrated in
agricultural and mining areas, [s]ince the early 1990s, both international and domestic
migrants are increasingly concentrated in the country’s urban centres.’8 Within the economic
heartland of Gauteng Province, the figures are higher – 7.9% of Johannesburg is foreign born.
And the city is itself further spatially differentiated: ‘[w]hereas inner-city areas like Yeoville,
Berea, and Hillbrow now are close to or above 50% foreign-born, the number of non-
4
To date, there has been relatively little exploration of the noncitizen national debate as it played out in South
Africa. See, e.g., J OHN DUGARD, INTERNATIONAL LAW: A S OUTHERN AFRICAN P ERSPECTIVE (3d ed., Juta &
Co. 2005). This is to be contrasted with the growing scholarship on the various legal traditions in the
constitutional history of the American empire. See, e.g., Christina Burnett, “They say I am not an American …”:
The Noncitizen National and the Law of American Empire, 48 VA. J. INT’L L. 659 (2008).
5
In this sense, the South African situation is analogous to that of Australia, where only recently has citizenship
been understood to be limited and defined via the constitution. See Helen Irving, Still Call Australia Home: The
Constitution and the Citizen’s Right of Abode, 30 SYDNEY L. REV. 133 (2008) (noting the shift occasioned by
Hwang v. Commonwealth (2005) 222 A.L.R. 83 (Austl.)).
6
For one telling of this story, see Jonathan E. Klaaren, Post-Apartheid Citizenship in South Africa, in FROM
M IGRANTS TO C ITIZENS : MEMBERSHIP IN A CHANGING W ORLD 221 (T. Alexander Aleinikoff & Douglas
Klusmeyer eds., Carnegie Endowment for Int’l Peace 2000).
7
LOREN LANDAU & AURELIA WA K ABWE -SEGATTI, UNITED NATIONS DEVELOPMENT PROGRAMME,
HUMAN DEVELOPMENT IMPACTS OF M IGRATION : SOUTH AFRICA C ASE S TUDY 5 (2009), available at
http://www.migration.org.za/sites/default/files/reports/2009/HDRP_2009_5.pdf (providing figures cited).
8
Id. at 14.
2
nationals is negligible elsewhere in the city.’9 Landau and wa Kabwe-Segatti also provide a
brief overview of the origins of current migrants: ‘[t]he great postapartheid change is the
massive influx of both permanent and temporary African and Asian migrants. Among these
are significant numbers of refugees and asylum seekers. Although European permanent
immigrants continued to dominate in absolute terms until 1998, since 2000, most migrants
have come from Africa and [Asia].’10
Rights to citizenship are present in two primary textual locations in the South African
Constitution, 1996. As one might expect, one location is firmly and clearly set within the Bill
of Rights, the second chapter of the South African Constitution.11 Here, section 20 entitled
‘Citizenship’ provides: ‘No citizen may be deprived of citizenship.’ Following this
somewhat terse clause, the four sub-clauses of section 21 – entitled ‘Freedom of Movement
and Residence’ – arguably grant more substantive rights to two particular classes of person:
the rights in two of its sub-clauses belong to “everyone” while the rights in the other two
accrue only to “citizens.” Everyone has freedom of movement and the right to leave the
Republic.12 Citizens have the right to enter, remain in, and reside in the Republic as well as
the right to a passport.13 Finally, in the other two most prominent locations of citizenship
within the Bill of Rights, two rights are limited entirely to citizens: political rights and the
freedom of trade, occupation, and profession.14 The second location of constitutional
citizenship lies outside the Bill of Rights and is interestingly placed in the chapter before the
Bill of Rights, in the founding provisions of the Constitution. Section 3 – also entitled
‘Citizenship’ – provides for a common South African citizenship, equality of privileges,
benefits and responsibilities, and for national legislation on certain aspects of citizenship such
as acquisition.15
The dual nature of this concept within the South African text mirrors the conceptual
split between the status of citizenship and the rights attendant upon that status. The modern
preoccupation is no longer with the boundaries of the community but rather with the depth of
the rights and benefits conferred or enjoyed. As the discussion to follow should make clear,
to date the Bill of Rights location has indeed had a greater salience within the South African
constitutional tradition than the location of citizenship within the Constitution’s founding
provisions.
In the interpretation and exploration of citizenship to follow, the focus is on the effects
of international law and of international migration on citizenship. To this extent, the
dimension of diversity of citizenship is relatively downplayed. While South Africa is indeed
seen by some as an ethnically divided society, the dominant post-apartheid cultural and legal
understanding is of a common undivided citizenship.16 Nonetheless, this choice is to indicate
that the issues of diversity of citizenship are not significant. Indeed, the recalibration of
9
This data on spatial distribution make it perhaps relevant to note that the right of residence in the South
African Bill of Rights is available to citizens while the freedom of movement is available to everyone as the next
paragraph discusses.
10
LANDAU & WA K ABWE -SEGATTI, supra note 7, at 19.
11
S. AFR. CONST. 1996 §§ 7-39.
12
S. AFR. CONST. 1996 §§ 21 (1)-(2).
13
S. AFR. CONST. 1996 §§ 21 (3)-(4).
14
One could also see other rights in the Bill of Rights as contributing to the substantive content of South African
citizenship.
15
S. AFR. CONST. 1996 § 3. As discussed elsewhere in this article, there are also other allusions or references
to citizenship in other parts of the Constitution. See, e.g., S. AFR. C ONST. 1996 § 198(b).
16
Klaaren, supra note 6, at 221-252.
3
citizenship within the contours of the South African Constitution along this dimension might
well be seen as crucial for the concept to play a fulsome global role. In this respect,
articulations of citizenship that embrace diversity are of importance. For instance, one aspect
of the project of equal citizenship is to reconcile aspects of the state project with African
traditionalism, a project arguably and safely underway in several respects.17
To date, the significant interaction between African migration and South African
citizenship has not been recognized.18 Nonetheless, a number of works are beginning to turn
to and engage with this relationship from a variety of disciplines. Some work examines the
influence of its African (and Asian) population on the development of citizenship in South
Africa, a society long characterized as one dominated by an exclusively white settler legacy. 19
A largely distinct body of scholarship has begun to examine citizenship in Africa itself.20 A
recent Open Society Institute report has concluded that African states “… manipulate
citizenship in order to bar certain individuals from standing for election; to bar certain groups
from voting; to escape responsibility for providing social services; or to maintain some
illusion of a national identity.”21 The textual location in the South African Constitution where
African traditions are most apparently drawn upon is in section 3(2)(b): “equally subject to
the duties and responsibilities of citizenship.”22
17
Nelson Tebbe, Witchcraft and Statecraft: Liberal Democracy in Africa, 96 GEO. L.J. 183, 222 (2007)
(discussing the compatibility, on a ‘culturalist’ reading, of the liberal principle of equal citizenship with the
conditional regulation of traditional healers). As Tebbe observes: “South Africa is among the newest and most
celebrated of the world’s democracies. Its government has wholeheartedly embraced constitutionalism in the
context of remarkable diversity. Various African groups share the land with Afrikaners, English-speaking
whites, South Asians, and so-called colored people of mixed ancestry, among others. Eleven languages enjoy
official status.” Id. at 185.
18
But see, e.g., J ONATHAN K LAAREN & B ONAVENTURE RUTINWA, T OWARDS THE H ARMONIZATION OF
IMMIGRATION AND REFUGEE LAW IN SADC (Jonathan Crush ed., The Institute for Democracy in South Africa
2004).
19
See also Jonathan Klaaren, Migrating to Citizenship: Mobility, Law, and Nationality in South Africa, 18971937 (2004) (unpublished Ph.D. dissertation, Yale University); C ATHERINE D AUVERGNE , HUMANITARIANISM ,
IDENTITY AND N ATION: M IGRATION LAWS OF C ANADA AND AUSTRALIA 51 (UBC Press 2005) (in settler
societies, migration law is a prior condition to community; it is foundational and constitutive “in a way that
constitutional law alone cannot [be]”).
20
See, e.g., JEFFREY HERBST, STATES AND P OWER IN AFRICA: COMPARATIVE LESSONS IN AUTHORITY AND
CONTROL 227-246 (Princeton Univ. Press 2000) (discussing the politics of migration and citizenship).
According to Herbst, the “fundamental problem confronting leaders of almost all African states [is] how to
broadcast power over sparsely settled lands.” Id. at 3. Herbst agrees that changing patterns of migration and the
dynamics of citizenship law “are inevitably intertwined because citizenship laws embody the identities that
African states have tried to construct on the assumption that populations are no longer mobile.” Id. at 227.
Herbst argues that “contrary to convention wisdom, African boundaries have fundamentally changed the nature
of population movements across the continent.” Id.
21
B RONWEN M ANBY, C ITIZENSHIP LAW IN AFRICA: A COMPARATIVE STUDY (Open Society Institute, 2009);
B RONWEN M ANBY, S TRUGGLES FOR C ITIZENSHIP IN AFRICA (Zed Books, 2009). Tracking domestic concerns
with equal citizenship, Manby argues in favour of clarifying and strengthening African regional norms on
citizenship through adoption of a Protocol to the African Charter on Human and Peoples’ Rights. The Open
Society Justice Initiative instituted an Audit and convened a workshop in Kampala, Uganda, attended by experts
from around the continent, in February 2007 in order to discuss the proposal for a new regional treaty on
citizenship in Africa. ‘The Audit is a response to the trend among some African governments to use group
membership as a basis for political and economic marginalization. It is designed to provide a means to address
restrictive citizenship policies that are either prima facie discriminatory or require individuals to meet effectively
impossible conditions in order to prove their citizenship.’ Afrimap,
http://www.justiceinitiative.org/activities/ec/ec_africacitizenship (last visited 29 June 2009).
22
S. AFR. CONST. 1996 § 3(2)(b).
4
Finally, there is an even deeper sense in which an aspect of South African citizenship
lies beyond the scope of this particular article. This is the degree to which citizenship
represents not merely the diversity of the cultural affiliations and identities of South Africans
but their reconciliation to each other in wake of the tragedy and national crime of apartheid.
A number of recent works have explored the ways in which reconciliation might be claimed
to lie at the core of South African citizenship; in other words, that to be a true South African
is to have achieved that promise of reconciliation through truth held out by the work of the
Truth and Reconciliation Commission (TRC).23 In the view of some, this facet of citizenshipas-reconciliation is the potential result of a particular governance project of forgiveness
pursued by the TRC.24 For others, this aspect seems to go even further and is inextricably
part of what it means to be a South African. In the view of du Bois and du Bois-Pedain,
“[t]oday, South Africans’ political identity is entwined with the value of reconciliation. Being
a South African citizen is believing in the value of reconciliation.”25 As du Bois and du BoisPedain note, there is solid textual grounding for this view in constitutional language. The
famous post-amble to the interim Constitution states that ‘reconciliation between the people
of South Africa’ is necessary to achieve ‘national unity, the well-being of all South African
citizens and peace.’26
Before treating their subsequent legislative and judicial interpretations, it is
appropriate to cover the outlines of the relatively recent period of constitutional drafting. The
moment of constitutional drafting – including the interim Constitution of 1994, the South
African Citizenship Act 88 of 1995, and the ‘final’ Constitution of 1996 as well as the two
certification cases of the Court – can be said to have run from 1993 through 1996.27 Striking
within this drafting process is the relative (though not completely uncontested) ease with
which the constitution was understood to provide nearly all its non-political substantive
benefits to everyone, not just to those with South African nationality. There was a certain
slippage with respect to several of the sub-clauses referred to above in response to the
stirrings of nativist politics.28 But by and large, the Constitution remains a document
characterized by a language of remarkable universalism, even within its provisions regarding
citizenship and migration.
Part II: Interpreting Constitutional Citizenship in South Africa
A recent focused discussion on the character of South African citizenship in the
legislative branch occurred in the course of the passage of the Prohibition of Mercenary
Activities and Regulation of Certain Activities in Country of Armed Conflict Act (‘the
23
See, e.g., Rosemary Nagy, Reconciliation in Post-Commission South Africa: Thick and Thin Accounts of
Solidarity, 35 CAN. J. P OL. S CI. 323 (2002).
24
Stéphane Leman-Langlois & Clifford Shearing, Transition, Forgiveness and Citizenship: The TRC and the
Social Construction of Forgiveness, in J USTICE AND RECONCILIATION IN P OST-APARTHEID SOUTH AFRICA
206 (Francois du Bois & Antjie du Bois-Pedain eds., Cambridge Univ. Press 2008).
25
Francois du Bois & Antjie du Bois-Pedain, Post-Conflict Justice and the Reconciliatory Paradigm: The
South African Experience, in JUSTICE AND RECONCILIATION IN P OST-APARTHEID S OUTH AFRICA, supra note
24, at 289, 293.
26
Id. at 290 (citing S. AFR. (Interim) CONST. 1993 Epilogue).
27
There is a large literature providing overviews of this drafting. See, e.g., HEINZ K LUG, C ONSTITUTING
DEMOCRACY: LAW, G LOBALISM AND SOUTH AFRICA’S P OLITICAL RECONSTRUCTION (Cambridge Univ.
Press 2000); R ICHARD SPITZ & M ATTHEW CHASKALSON, T HE P OLITICS OF T RANSITION: A H IDDEN H ISTORY
OF SOUTH A FRICA'S N EGOTIATED SETTLEMENT (Hart 2000).
28
See Jonathan Klaaren, Contested Citizenship in South Africa, in T HE P OST-APARTHEID CONSTITUTIONS :
P ERSPECTIVES ON SOUTH AFRICA’S B ASIC LAW 304 (Penelope Andrews & Stephen Ellmann eds.,
Witwatersrand Univ. Press 2001).
5
Mercenaries Act’).29 Among other purposes, the Act regulates the participation by persons in
the armed services of countries other than South Africa. Notably, section 2(1)(a) of the Act
prohibits “persons” to participate as a combatant for private gain in an armed conflict.
Persons is then defined by the Act to mean “a person who is a citizen of, or is permanently
resident in, the Republic, a juristic person registered or incorporated in the Republic, or any
foreign citizen who contravenes this Act within the borders of the Republic.”30 This
legislative intervention into the duties and constraints placed on citizens can draw upon
significant constitutional backing. In particular, the South African constitution notes as one
of the governing principles of national security in the Republic that “[t]he resolve to live in
peace and harmony precludes any South African citizen from participating in armed conflict,
nationally or internationally, except as provided for in the Constitution or national
legislation.”31
Several significant judicial interpretations of constitutional citizenship have taken
place over the years since constitutional drafting. In chronological order, there have been
three principal cases: Larbi-Odam and Others v Member of the Executive Council for
Education (North-West Province) and Another32, holding that citizenship is an un-enumerated
ground of prohibited discrimination in terms of the constitutional equality clause; Khosa v
Minister of Social Development; Mahlaule v Minister of Social Development33, which
extended Larbi-Odam and confirmed the provision of socio-economic rights on an equal basis
between South African nationals and those permanently resident in South Africa without
nationality; and Kaunda & Others v President of the Republic of South Africa & Others34,
granting no relief in the context of South African nationals held for alleged mercenary
activities and allegedly subject to ill treatment and exploring to what extent the South African
Bill of Rights has a doctrine of diplomatic protection that protects citizens abroad. To these
three, we can now add the 2009 elections-related case of Richter, where the Court considered
and partially agreed with an urgent challenge to the Electoral Act’s denial of voting to certain
classes of citizens residing abroad.35
Larbi-Odam, Khosa and others in their line can be seen as challenges to distinctions
drawn on the basis of citizenship. They arise within South Africa and pertain to the conduct
of the South African public authorities and compose the first significant strand of South
African constitutional citizenship. The Court’s consideration in Larbi-Odam of the claims of
a number of teachers to be protected from employment discrimination set the parameters.
Articulating a type of ‘lawful status’ citizenship, the Court found the equality clause would
protect this unenumerated status and struck down the provincial regulation denying job
29
Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27
of 2006. The Act was assented to by the President on November 12, 2007 but was not in force as of September
2009. Legislative consideration of citizenship also occurred to a certain degree around the passage of some
amendments to the South African Citizenship Act 88 of 1995.
30
Act 27 of 2006 s. 1.
31
S. AFR. CONST. 1996 § 198(b).
32
Larbi-Odam & Others v Member of the Executive Council for Education (North-West Province) & Another
1998 (1) SA 745 (CC), 1997 (12) BCLR 1655 (CC).
33
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA 505 (CC),
2004 (6) BCLR 569 (CC).
34
Kaunda & Others v President of the Republic of South Africa & Others 2005 (4) SA 235 (CC), 2004 (10)
BCLR 1009 (CC).
35
Richter v Minister for Home Affairs & Others (with the Democratic Alliance & Others Intervening, & with
Afriforum & Another as Amici Curiae) [2009] ZACC 3, 2009 (3) SA 615 (CC); Moloko & Others v Minister of
Home Affairs & Another CCT 10/09; A Party & Another v Minister of Home Affairs & Another, CCT 06/09.
ZACC 4; 2009 (3) SA 649 (CC) (12 March 2009)
6
renewals on the basis of South African nationality. The Court thus protected the jobs of these
permanent residents who were largely of African origin. The Court’s reasoning depended on
three factors: that foreign citizens were a minority without political muscle, that citizenship
was a personal attribute difficult to acquire, and that foreign employees faced specific threats
and intimidation.36
Heard on 13 and 30 May 2003, Khosa concerned Mozambican nationals with South
African permanent residence applying for social welfare benefits from the South African
state.37 Some of the applicants in Khosa were destitute and would have qualified for old-age
grants in terms of South African statutory law but for their Mozambican citizenship.38 The
applicants had also presented applications for child-support and care-dependency grants. The
proceedings of the case (actually of two joined cases) were themselves somewhat chaotic as
the government’s lawyers initially requested an extension of time (which was denied) and
then simply conceded some elements of the applicants’ legal argument at the next hearing
date.39
Principally, the applicants asserted their constitutional right of social security, a socioeconomic right found in section 27(1) of the South African constitution and guaranteed
(unlike the political rights such as the right to vote) to “everyone.”40 Striking down the
provisions excluding permanent residents from the socio-economic right of social assistance,
the majority judgment was written by Judge Yvonne Mokgoro.41 As was the case with other
socio-economic rights, the ambit of the section 27(1) rights should be determined with
reference to the reasonableness of the measures adopted to fulfill the obligation.42 In two
paragraphs that contrasted the right to social security granted to “everyone” with the right of
access to land in section 25(5) granted to citizens, Mokgoro J confirmed that everyone in the
36
See Jonathan Klaaren, Non-Citizens and Equality: Larbi-Odam v MEC for Education (North-West Province),
14 S. AFR. J. HUM. RTS. 284 (1998).
37
These foreign nationals had been granted South African permanent residence in December 1996 after having
fled civil war in Mozambique over the previous years. T HE NEW S OUTH AFRICANS? IMMIGRATION
AMNESTIES & T HEIR AFTERMATH (Jonathan Crush & Vincent Williams eds., Institute for Democracy in South
Africa 1999).
38
Social Assistance Act 59 of 1992. The applicants were indigent residents living in the poor Limpopo
province, the present-day South African province bordering on Mozambique and Zimbabwe. This area has long
been one where persons with links to both Mozambique and South Africa have lived. See Khosa at para. 2.
39
Pertinently, the evidence in Khosa showed that the regional office of the Department of Social Development
had initially supported the applicants’ entitlement to social grants. Indeed, as events demonstrated, it was thus
not at the regional or departmental level but only in Cabinet, at the national level, that it had been decided to
oppose the Constitutional Court relief sought by the applicants. On the decision of the Minister of Home
Affairs, the application had been unopposed in the lower court. This bureaucratic contestation may be read to
indicate the unsettled state of the executive branch of the state with respect to a contemporary understanding of
South African citizenship.
40
S. AFR. CONST. 1996. § 27 (“Everyone has the right to … social security, including, if they are unable to
support themselves and their dependants, appropriate social assistance.”). See generally Mia Swart, Social
Security, in CONSTITUTIONAL LAW OF S OUTH AFRICA 56D-1 (2d ed., Stuart Woolman et al. eds., Juta & Co.
2007).
41
Mokgoro J was also the author of the majority in Larbi-Odam, supra note 32.
42
For an overview of socioeconomic rights jurisprudence, see Sandra Liebenberg, The Interpretation of
Socioeconomic Rights, in CONSTITUTIONAL LAW OF S OUTH AFRICA, supra note 40, 33-1. A lively South
African debate currently exists on the desirability of this standard. Compare Carol Steinberg, Can
reasonableness protect the poor? : a review of South Africa's socio-economic rights jurisprudence, 123 S. AFR.
L.J. 264 (2006) and Karin Lehmann, In Defense of the Constitutional Court: Litigating Socio Economic Rights
and the Myth of the Minimum Core, 22 AM. U. INT'L L. REV. 163 (2006) with DAVID BILCHITZ, P OVERTY AND
FUNDAMENTAL R IGHTS: T HE J USTIFICATION AND ENFORCEMENT OF S OCIO-ECONOMIC R IGHTS (Oxford
Univ. Press 2007).
7
context of s 27 would apply to non-citizens.43 In supporting the application of these socioeconomic rights in this case, she explicitly cited the residence-based nature of the Bill of
Rights.44
The textual interpretation of the socio-economic right to appropriate social assistance
did not end the enquiry. Mokgoro J needed to consider specifically the fact of the case that
the applicants here were non-citizens. Indeed, what made this case different from those
previously considered by the Court was that the social security scheme put in place by the
state to meet s 27 obligations raised an equality issue: in restricting the availability of social
assistance to otherwise qualifying South African permanent residents on the basis of their
holding foreign nationality, the scheme arguably violated the Constitution’s prohibition in
section 9 (the right to equality) against unfair discrimination.45 Delving into the Court’s
equality jurisprudence, Mokgoro J recognized that there was indeed a potential violation of
the equality right, stating ‘[i]t is important to realize that even when the state may be able to
justify not paying benefits to everyone who is entitled to those benefits under section 27 on
the grounds that to do so would be unaffordable, the criteria on which they choose to limit the
payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights
as a whole.’46 In her view, the criterion of citizenship, thus excluding permanent residents,
would not be consistent. While permanent residents can apply for naturalization after five
years in terms of current legislation, this was not within the control of the applicant. 47
Moreover, there was no justification offered for the bar to social security benefits during this
five year period.48
In her analysis, Mokgoro J considered and rejected American jurisprudence that found
discrimination against legal permanent residents to be justified constitutionally. The
consideration and rejection came in two segments.49 First, Mokgoro noted that the legislative
assumption expressed in the Immigration Act of the equality between citizens and permanent
residents was at odds with the social contract theory of US cases such as Mathews v Diaz.50
Second, Mokgoro noted American cases such as City of Chicago v Shalala finding rational a
policy linkage between national immigration policy and a welfare policy of encouraging selfsufficiency of immigrants would be inapplicable due to the higher standard of reasonableness
with which the Court judges socioeconomic rights.51
Judge Sandile Ngcobo wrote a cogently argued minority judgment, concurred in by
Madala J. Although he could have seen this case as one of equality, Ngcobo J accepted for
purposes of argument that the right of social security was available to everyone and that this
43
Khosa at para. 46-47.
Id. at para. 47. Indeed, Mokgoro J’s discussion of the claims went beyond the category of socio-economic
rights: “[t]he rights to life and dignity, which are intertwined in our Constitution … are [also] implicated in the
claims made by the applicants.” Id. at para. 41 n.47 (citing S v Makwanyane & Another [1995] ZACC 3, 1995
(3) SA 391 (CC), 1995 (6) BCLR 665 (CC)).
45
Khosa at para. 44.
46
Id. at para. 45. See also id. at para. 50 (Mokgoro J noting that the state did not argue that the limitation was
either a temporary measure or one designed as part of a strategy of progressive realization of rights).
47
Id. at para. 56.
48
Id. at para. 56-57 (drawing reasoning for the rejection of the argument that the scheme provides an incentive
to naturalize from the provision of equality within the Immigration Act of 2002). Cf. Watchenuka v Minister of
Home Affairs 2004 2 BCLR 120, 2004 4 SA 426 (SCA).
49
Khosa at para. 57, 66. As Ralph Bunche has pointed out to me, this rejection may be facilitated by the
limitations stage in the South African limitations analysis.
50
Mathews v. Diaz, 426 U.S. 67 (1976).
51
City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999).
44
8
case could be decided in that light.52 However, he went on to consider the effects on the
claim of the limitations clause, section 36 of the Bill of Rights. In applying the substance of
these tests, Ngcobo J’s analysis differed significantly from the views expressed and concurred
in by the majority of the judges. Ngcobo J viewed the fact of the applicants’ lack of
citizenship as a temporary condition, a condition only existing (should the applicants choose
to apply for citizenship) for the five year waiting period for citizenship.53 Further, his
minority judgment noted that legislative provisions existed to grant social grants in
exceptional circumstances and existed even to extend the definition of citizens.54 Ngcobo J
felt that the state’s arguments in favour of limiting social assistance in these instances to
citizens were successful. The state had raised justification arguments that included
controlling the rising costs of the social assistance system, reducing the incentive for foreign
nationals to immigrate to South Africa, and promoting the need for resident immigrants to be
self-sufficient.55 Additionally, the social assistance limitation effectively provided an
incentive for such permanent residents to naturalize (to perfect their permanent residence into
citizenship) – a powerful reason in the reasoning of Ngcobo J, who stated ‘[t]he unequivocal
declaration of loyalty and commitment that an alien can give to a country is through
naturalization and taking the oath of allegiance. After this a permanent resident becomes a
citizen and thus qualifies for social security benefits.’56 Ngcobo J thus would have found the
statutory limitation on the s 27 right to be reasonable and decided the case differently from
Mokgoro J.57
The difference in approach between the majority and the minority judgments in Khosa
should not be overstated. Still, the animating spirit for the Ngcobo J opinion is that of
citizenship as an exclusive membership community whereas that of the majority is that of
citizenship as lawful residence – as opposed to membership in a political Republic or
membership in a cultural bloc or individual participation in a post-nationalist universal human
rights culture. The lawful status vision of citizenship of the majority, first expressed in LarbiOdam, held at least as of 4 March 2004, the date of decision of Khosa.58
In a second significant strand of South African constitutional citizenship, we can turn
to cases that are at heart assertions of a constitutional right to diplomatic protection. Led by
the Court’s decision in Kaunda, these cases arise out of events occurring outside South Africa
and mostly have to do with the conduct of foreign states.59 For instance, Kaunda, a number of
South African citizens were held in Zimbabwe on various charges related to weapons
possession, immigration violations and were allegedly involved in a planned but aborted coup
52
Khosa at para. 111.
Id. at para. 115.
54
Id. at para. 116-118.
55
Id. at para. 126.
56
Id. at para. 130.
57
Id. at para. 134. Ngcobo J’s reasoning was limited in this respect and did not extend to the claims for
dependency and child support grants where he noted that the discrimination hits the dependent through the
primary care-giver. Id. at para. 135.
58
Mokgoro J will have her last day at the Court in October 2009. She will be stepping down along with Langa
CJ, O’Regan J, and Sachs J. Such a large exit from the Court and the prior departure of two other judges from
the Court means that the Khosa majority of seven judges (of the eleven on the Constitutional Court) will be
reduced after October 2009 to three confirmed votes: the two votes of Moseneke DCJ and Yacoob J plus the
vote of van der Westhuizen J, who concurred with Mokgoro and O’Regan JJ in Union of Refugee Women and
Others v Director: Private Security Industry Regulatory Authority and Others [2006] ZACC 23, 2007 (4) BCLR
339 (CC).
59
Kaunda & Others v President of the Republic of South Africa & Others 2005 (4) SA 235 (CC), 2004 (10)
BCLR 1009 (CC).
53
9
in Equatorial Guinea. They sought an order compelling the South African government to take
urgent steps, including diplomatic representations on their behalf to the Zimbabwean and
Equatorial Guinean governments.
The tension apparent in Khosa between a lawful residence concept of citizenship and a
more republican vision of citizenship may also arguably be seen in this later decision of the
Constitutional Court. The main judgment of Chaskalson CJ articulated an extra-territorial
state duty of diplomatic protection of nationals, holding that in terms of section 3, South
African citizens are constitutionally entitled to request the government of South Africa for
protection under international law against wrongful acts of a foreign state. This duty was both
based in and contrasted with the duty that the state owed to its residents within the territory.60
Here, Chaskalson CJ quoted and used the language in section 7(1): ‘This Bill of Rights is a
cornerstone of democracy in South Africa. It enshrines the rights of all people in our country
and affirms the democratic values of human dignity, equality and freedom.’61 This clause and
particularly the first part of the second sentence – ‘It enshrines the rights of all people in our
country’ – seems destined to be the cornerstone of the lawful residence character
understanding of citizenship in South Africa.62
Chaskalson’s judgment contrasts with one of the concurrences by Ngcobo J and with
the dissent by O’Regan J. In a similar vein to his reasoning in Khosa, Ngcobo J’s
concurrence shows a clear understanding that South African citizenship rights are those
consistent with a republican notion of the citizen.63 In a somewhat similar approach, the
dissent of O’Regan J (who would have granted greater relief than did the majority) likewise
explored the degree of necessity of giving extra-territorial rights to South African citizens,
although seemingly only to avoid giving no meaning to this constitutional concept. 64 The
concurrence and the dissent both would have extended and granted a more fulsome concept of
diplomatic protection to be enjoyed by citizens and not by permanent residents. In this, they
contrast with the conceptual understanding underlying the majority refusal to extend relief (at
least in the circumstances presented to the Court in Kaunda) to these citizens then outside
South African borders.
A case recently heard and decided by the Constitutional Court, Von Abo v Government
of the Republic of South Africa & Others, was an attempted confirmation of a lower court
60
Chaskalson CJ reasoned that foreigners lost their rights to protection by the South African government of the
right to life and dignity and of the right not to be punished in a cruel and unusual way when they were outside
the territory of South Africa. Id. at para. 36. His question was then whether S. AFR. CONST. 1996. § 7(2) gave
citizens more rights in this respect than foreigners. This emphasis on territoriality and extra-territoriality was
combined with the reasoning (Kaunda at para. 63) where citizenship – given in S. AFR. CONST. 1996. § 3 (and
thereby nearly always nationality) – entitled a citizen to request diplomatic protection as a benefit of citizenship.
Five other judges joined in this judgment: Langa, Moseneke, Yacoob, van der Westhuizen, and Skweyiya JJ.
61
Kaunda at para. 37.
62
See Jonathan Klaaren, Citizenship, in CONSTITUTIONAL LAW OF SOUTH AFRICA, supra note 40, 60-1
(discussing alternative understandings of the phrase). In Khosa, Mokgoro J chose to put the five-word phrase
“all people in our country” in italics for emphasis. Khosa at para. 41 n.55.
63
Ngcobo J’s judgment focused more than Chaskalson CJ’s on S. AFR. CONST. 1996 § 3(2) and the status of
citizenship. Indeed, his understanding of the rights at issue here hinges on the status of citizenship, not on the
Bill of Rights per se. Kaunda at para. 180. Ngcobo J noted the positive duty of the state to protect its citizens
within its border and wished the right of citizenship to be construed purposively “so as to give it content and
meaning.” He decides diplomatic protection is at least a benefit if not a right of citizenship. Id.
64
Kaunda at para. 235 (“We must start from an assumption that citizens do enjoy some privileges and benefits
in addition to the rights conferred by the Constitution, for otherwise the reference to ‘privileges and benefits’ in s
3 would be meaningless.”).
10
decision applying Kaunda and granting relief to a South African citizen deprived of property
in Zimbabwe.65 Here, the counsel for the claimant sought to extend the Kaunda holding
significantly, interpreting that case to hold that “a South African national has two entitlements
in respect of diplomatic protection: …a national has an entitlement to request diplomatic
protection as a constitutional right; and …because the request is premised on a constitutional
right, a national has an entitlement to expect the President to consider such request and to deal
with it appropriately; that is, that the President must consider a request properly (rationally)
and ought to provide appropriate protection (in line with the government's foreign policy
commitments) unless there are compelling reasons not to do so.”66 The Constitutional Court’s
decision in Von Abo treated only the issue of jurisdiction of a confirming order. The crisp
issue as noted was thus whether “the failure to provide diplomatic protection by the President
constitutes “conduct” as envisaged in section 172(2)(a) of the Constitution.”67 In the South
African constitutional scheme, the Constitutional Court must confirm orders of
unconstitutionality of Presidential conduct.68 While the final hearing of the case thus did not
explicitly turn on citizenship, the Von Abo litigation has clarified and consolidated the South
African availability of diplomatic protection.69
A third and final significant strand of South African constitutional citizenship may be
constituted by a series of cases decided on citizenship and voting. The context of these cases
is closest to those dealing within distinctions on citizenship since in each case the litigation
arose within South Africa and pertained to the conduct of the South African public authorities.
The facts involve most closely the actions and legal interpretations of the Independent
Electoral Commission – a domestic public authority with constitutional status and
headquarters in Pretoria. Nonetheless, they share the significant feature of the diplomatic
protection line of cases insofar as they concern South African nationals who are resident
outside of the territory of the Republic.70 To that extent, these cases dramatically highlight
the symbolic aspects of constitutional citizenship, an aspect not lost upon the advocates
presenting these cases.
The litigation in several of these cases was combined and reached the Constitutional
Court under the name of Richter.71 In these matters, the Electoral Act’s denial of voting to
certain classes of citizens residing abroad was challenged on an urgent basis.72 In the Court’s
determination, the various categories of temporary residence were largely rationalized, so as
65
Von Abo v Government of the Republic of South Africa & Others CCT 67/08, [2009] ZACC 15 (CC). The
applicant’s farms were expropriated in terms of a new land policy in 1997. Von Abo resisted the expropriation
and requested diplomatic protection from the South African government, but remained unsatisfied until applying
to court for an order to that effect in 2007.
66
Applicant’s Heads of Argument, CCT 67/08, para. 50.
67
Von Abo at para. 23.
68
See Zantsi v Council of State, Ciskei & Others [1995] ZACC 9, 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424
(CC) for an early judgment in this line of cases.
69
In its law on diplomatic protection of citizens and particularly its willingness to forge some type of right to
judicial review here, the Court may well be forging ahead even of the fast-developing international law and
practice in this area of state responsibility towards its nationals.
70
The South African Constitution does not prohibit the extension of voting rights to non-nationals. The
provisions protect the voting rights of citizens but do not speak to the rights of non-nationals. Indeed, permanent
residents were entitled to vote in the epochal non-racial elections of 1994. T HE NEW SOUTH AFRICANS?
IMMIGRATION AMNESTIES & T HEIR AFTERMATH, supra note 37. Nonetheless, the current electoral law
provides only for voting rights for nationals.
71
Richter v Minister for Home Affairs & Others (with the Democratic Alliance & Others Intervening, & with
Afriforum & Another as Amici Curiae) [2009] ZACC 3, 2009 (3) SA 615 (CC).
72
Electoral Act 73 of 1998.
11
to extend the right to vote to all those temporarily abroad, on condition that they registered.73
As argued, the issue appeared to fall closer to the equality line of cases rather than to that of
diplomatic protection. Nonetheless, four of the principal heads of argument specifically
referred to the citizenship provisions outside the Bill of Rights, those in s 3.74 The litigation
proceeded on the dominant assumption that citizens abroad do have the s 19 right to vote.
Since the applicants were all outside the South African territory, one might conclude that
governmental involvement appears to trump the extraterritorial location of the applicants. In
this light, Richter may be seen an example of the branch of Kaunda reasoning where the
Court is cautiously pulling ahead of the global citizenship practices.75 In any case, the
decision of the Court turned on the irrationality of the distinctions that the legislation sought
to draw between various categories of citizens residing abroad, distinctions that in the final
stage of the litigation the government chose not to defend.
Conclusion: Compare and contrast and coherence?
Do these three strands of Constitutional Court jurisprudence present a unified and
coherent vision of citizenship? In any case, should there be a coherent approach in these
differing contexts? Some would see in these cases and three strands of constitutional
citizenship the unifying dimension of the starkly political. Indeed, it is perhaps not surprising
that the diplomatic protection line of cases has in particular been subject to this analysis. In
the view of one close observer of the Court, Kaunda is a case where the Constitutional Court
has compromised on principle and failed to uphold the appropriate balance in the separation
of powers.76 In Roux’s view, the case is one of a series of such cases where the Court has
compromised on principle in order to avoid confrontation with the political branches and thus
to safeguard its institutional legitimacy.77
73
Richter at para. 108-109. As described in the lower court decision, the main applicant in Richter presented a
thin (but nevertheless not frivolous) rationale for his temporary absence from the Republic: “For no other reason
than ‘wanderlust’ and in an attempt to further educate himself (in the widest sense of the word) he decided upon
international exposure before commencing his career as a teacher in South Africa and he accepted a temporary
post as a teacher in the United Kingdom.” Richter v Minister of Home Affairs CN 4044/09 (Transvaal Provincial
Division, 9 February 2009) para. 18.
74
Applicants’ Heads of Argument, paragraph 45; Written Submissions of the Intervening Applicants,
paragraph 38; and, appearing to foreground the provision, Written Submissions of the Inkatha Freedom Party,
paragraph 18.3. Written Submissions on Behalf of the Applicants, paragraph 49 (A Party and Another v The
Minister for Home Affairs and Others (CCT 06/09) (12 March 2009)
75
To investigate such a proposition, one would need to evaluate the relief eventually ordered in Richter with
extraterritorial electoral practices. According to one study, 115 countries and independent territories have
introduced some form of voting rights for their citizens residing abroad. Eurasylum, Eurasylum’s Monthly
Policy Interviews: May 2009, Prof. Rainer Baubock, http://www.eurasylum.org (follow “Interviews” hyperlink;
then follow “05/2009” hyperlink) (last visited Sept. 11, 2009).
76
See Steven Pete & Max du Plessis, South African nationals abroad and their right to diplomatic protection –
lessons from the ‘mercenaries case’, 22 S. AFR. J. HUM. RTS. 439 (2006); Max du Plessis, The Thatcher case
and the supposed delicacies of foreign affairs: a plea for a principled (and realistic) approach to the duty of
government to ensure that South Africans abroad are not exposed to the death penalty 2 S. AFR. J. CRIM . J UST.
143 (2007). Pete & du Plessis, supra, and Stuart Woolman, Application, in CONSTITUTIONAL LAW OF SOUTH
AFRICA, supra note 40, 31-1 argue that Kaunda marks a retraction from the Constitutional Court’s earlier
decision in Mohamed & Another v President of the Republic of South Africa & Others (Society for the Abolition
of the Death Penalty and Another Intervening) 2001 (3) SA 893 (CC).
77
Theunis Roux, Principle and Pragmatism on the Constitutional Court of South Africa, 7 INT’L. J. CONST. L.
106 (2009). The other cases are New National Party of South Africa v Government of the Republic of South
Africa 1999 (3) SA 191 (CC) and United Democratic Movement v President of the Republic of South Africa
2003 (1) SA 495 (CC). In his discussion of Kaunda, Roux notes that the majority decisions in these cases can be
justified by a strong interpretation of the separation of powers doctrine. Roux, supra at ___. For another
empirical view on the evolution of the institutional legitimacy of the Constitutional Court using a different
12
At a conceptual level, I would suggest a coherence among these lines of cases in terms
of the concept of lawful residence. This concept is indeed at the heart of the LarbiOdam/Khosa line of cases. Here, the vision of the South African citizen paradoxically but
definitively includes the permanent resident. It is a vision of citizenship distinct from
republican, culturalist, or universal visions. This lawful residence also coheres clearly with
the Kaunda line of cases. While of course extending beyond South Africa’s borders, the tool
of diplomatic protection as crafted by the Court is rooted firmly in a vision of protection of
the population (the entire population) that is within territorial border. And finally such a
vision also arguably underpins the electoral jurisprudence, where the preeminent case,
Richter, has interrogated and further rationalized the status of temporary residence. In all
lines, the jurisprudence revolves around the concept of lawful residence rather than nationality
per se. Nonetheless, this broad coherence may mask a further dimension of contestation.
What’s lawful and how resident?
The legal dimensions of the recent xenophobic violence which took place in the
Gauteng and Western Cape provinces in May 2008 and the government response have not
been treated in this article thus far. In the standard accounts of this violence available thus
far, sixty-two persons lost their lives as violence flared first in Gauteng and then later in
KwaZulu-Natal and the Western Cape as well.78 The civil society/humanitarian response
was an initially heartening one though, at least in Gauteng, it proved unsustainable.
Unfortunately, a year after the events, it seems relatively clear that little accountability has
been achieved. According to a report in the press on 11 May 2009, a year after the violence,
not a single conviction for murder or rape had been secured.79
Despite or perhaps because of the violence of the events, its connections to and its
implications for the development of themes of citizenship can be fruitfully explored, if only
briefly. One view sees the violence as the more or less natural result of either (or both)
apartheid deprivations visited upon the majority or the envy of the newly empowered with
respect to those from outside the borders who appear to be enjoying a disproportionate share
of the spoils. In another more empirically informed view, the violence is the result of
multiple and varied failures of local government capacity and leadership. Consistent with this
second view, another perspective sees the xenophobic violence as part of the ongoing
contested yet also constitutive struggle over the current meaning of South African citizenship.
methodology, see, e.g., James Gibson, The Evolving Legitimacy of the South African Constitutional Court, in
J USTICE AND RECONCILIATION IN P OST-APARTHEID S OUTH AFRICA, supra note 24, at 229 (using national
quantitative surveys to assess institutional loyalty of ordinary South Africans to the Constitutional Court).
Gibson concludes that the Court like the Parliament ‘seem[s] to be slowly building institutional legitimacy.’
Gibson, supra at 231.
78
For an overview of the May 2008 xenophobic violence and the humanitarian response to it, see VICKI
IGGLESDEN ET AL., FORCED MIGRATION STUDIES PROGRAMME, HUMANITARIAN ASSISTANCE TO INTERNALLY
D ISPLACED P ERSONS IN S OUTH AFRICA: LESSONS LEARNED FOLLOWING ATTACKS ON FOREIGN
N ATIONALS IN M AY 2008 (2009), available at
http://www.migration.org.za/sites/default/files/reports/2009/Disaster_Response_Evaluation_FINAL_02.02.09.pd
f. For a more interpretive and immediate account of the violence, see GO HOME OR D IE H ERE: VIOLENCE,
XENOPHOBIA AND THE REINVENTION OF D IFFERENCE IN SOUTH AFRICA (Shireen Hassim et al. eds., Wits
Univ. Press 2008).
79
Beauregard Tromp & Alex Eliseev, Bloody Injustice, T HE STAR, May 11, 2009. Of the 68 cases initially
placed on the court roll, 35 were withdrawn, 11 found not-guilty, and only six resulted in guilty findings. Four
have been sent back for further investigation and six were still running as of that date.
13
The debates over the precise causes and meaning of the xenophobic violence are likely to
continue.80
Can one predict the direction in which South African constitutional doctrine with
respect to the rights of non-citizens will go? Two developments might be looked to for
telltale signs of direction, though they point in opposite directions. The first is the final case
in the line of equality, Union of Refugee Women81, which found a statute authorizing the
requirement of extensive documentation before refugees could be registered as security
guards not to be discriminatory because the trustworthiness of nationals and permanent
residents is easier to verify objectively than that of refugees. Cathi Albertyn has convincingly
argued that the case is explicable in terms of stereotypes, including one that refugees are
inherently untrustworthy.82 Union of Refugee Women may represent either a backtracking on
the Larbi-Odam line or else just an unwise case for refugee rights advocates to have tried. A
second development and a more positive one is the current movement in the political branches
regarding a potential dispensation for migrants from Zimbabwe to South Africa. The
movement here is twofold – within the South African executive and within the structures of
the SADC region. Having ignored for a number of years the plight of the persons fleeing to
South Africa from Zimbabwe’s collapsing political economy, in April 2009 the government
announced a policy of granting renewable short-term work permits to Zimbabwean nationals
under certain conditions – ‘special dispensation permits.’ This step was widely called for and
welcomed among human rights organizations both domestically and internationally and was
welcomed as representing ‘a positive shift towards a rational, coherent and regionally
beneficial migration management approach.’83 While the announced policy was not
immediately and fully implemented, its announcement and partial implementation nonetheless
represents a potentially considerable step towards a more developmental and region-regarding
migration policy on the part of the South African state. Also developing at the regional level
is the concept of regional or SADC citizenship as seen most pertinently in the recent SADC
Tribunal litigation, In re Mike Campbell (Pvt) Ltd and others v. The Republic of Zimbabwe.84
The Tribunal has issued three decisions in this litigation on admissibility, the merits, and most
recently on contempt and enforcement.85 According to the Tribunal, the SADC Treaty must
80
See generally EXORCISING THE DEMON: XENOPHOBIA, V IOLENCE, AND S TATECRAFT IN CONTEMPORARY
SOUTH AFRICA, (Loren Landau ed., forthcoming 2010).
81
Union of Refugee Women & Others v Director: Private Security Industry Regulatory Authority &
Others [2006] ZACC 23, 2007 (4) BCLR 339 (CC).
82
Cathi Albertyn, Beyond Citizenship: Human Rights and Democracy, in GO HOME OR D IE HERE:
V IOLENCE, XENOPHOBIA AND THE REINVENTION OF D IFFERENCE IN SOUTH AFRICA 175, supra note 78, (the
other stereotype Albertyn points out is that South Africans should be preferred to refugees (who are essentially
equivalent to permanent residents as the dissenting minority of Langa, O’Regan, and Mokgoro in Union of
Refugee Women point out) in employment matters, contrary to the holding of Larbi-Odam, supra note 32).
83
See FORCED MIGRATION STUDIES PROGRAMME, MIGRATION P OLICY B RIEF: REGULARISING Z IMBABWEAN
M IGRATION TO SOUTH AFRICA (2009), available at
http://www.migration.org.za/sites/default/files/policy_documents/2009/Regularising_zim_migration_sa_may200
9.pdf.
84
Mike Campbell (pvt) Ltd & Another v. Republic of Zimbabwe (2/07) [2007] SADCT 1 (S. Afr. Dev. Cmty.
Trib., Dec. 13, 2007), available at http://www.saflii.org/sa/cases/SADCT/2007/1.html; Mike Campbell (Pvt) Ltd
& Others v. Republic of Zimbabwe (2/07) [2008] SADCT 2 (S. Afr. Dev. Cmty. Trib., Nov. 28, 2008), available
at http://www.saflii.org/sa/cases/SADCT/2008/2.html; Mike Campbell & Another v. Republic of Zimbabwe
(SADC (T) 03/2009) [2009] SADCT 1 (S. Afr. Dev. Cmty. Trib., June 5, 2009), available at
http://www.saflii.org/sa/cases/SADCT/2009/1.html.
85
In the judgment on admissibility, the Tribunal delivered itself of some far-reaching language in holding the
complaint admissible despite the argument of the government of Zimbabwe and stating: “The interpretation and
application of the SADC Treaty and the Protocol is therefore one of the bases of jurisdiction. For purposes of
this application, the relevant provision of the Treaty which requires interpretation and application is Article 4,
14
be interpreted to mean “that SADC as a collectivity and as individual member States are
under a legal obligation to respect and protect human rights of SADC citizens.”86 While the
enforcement power is mediated through the political organs of SADC, this series of decisions
gives at least some legal significance to the concept and status of SADC citizen.
These developments indicate that there may be regional strength even at the same time
there is some softening of the judicial protections offered to non-citizens domestically.
Indeed, Kaunda – in the relatively positive spin given it here – indicates that there is some
appetite at least in the current Court to explore rights protection of South Africa’s entire and
diverse population regionally and continentally. In any case, what is clear is that there is
ferment and movement on the rights of Africans in South Africa at the moment.
which in the relevant part provides: ‘SADC and Member States are required to act in accordance with the
following principles – (c) human rights, democracy and the rule of law.’ This means that SADC as a collectivity
and as individual member States are under a legal obligation to respect and protect human rights of SADC
citizens. They also have to ensure that there is democracy and the rule of law within the region.” The Tribunal
judged the application admissible on the basis of its governing Protocol on Tribunal Article 15(1) which
provides in broad terms “The Tribunal shall have jurisdiction over disputes between States, and between natural
or legal persons and States.” Mike Campbell (pvt) Ltd & Another v. Republic of Zimbabwe (2/07) [2007]
SADCT 1 (S. Afr. Dev. Cmty. Trib., Dec. 13, 2007) at 3.
86
Mike Campbell (pvt) Ltd & Another v. Republic of Zimbabwe (2/07) [2007] SADCT 1 (S. Afr. Dev. Cmty.
Trib., Dec. 13, 2007) at 3.
15