Gauteng’s Member of the Executive Council (MEC) for economic development published the Gauteng Township Economic Development Bill, which seeks, among other things, to reserve certain business activities in “designated townships” exclusively and solely for ownership and operation by citizens and permanent residents of South Africa.
However, observations revealed that section 7(2) of the bill does not only 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.
Herman Mashaba’s ActionSA and other anti-African immigrant groups often complain when they are called Afrophobic or xenophobic.
Meanwhile, their 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 not being bought by many people.
Mashaba and his cliques argue that every country has immigration laws and they are that they only insist that these be tightened and better enforced for the benefit of South African citizens.
Moreover, many people wonder why these anti-African foreigners closed their eyes and ears at all the academic studies that have found that immigrants in South Africa generate jobs for locals and that immigrants contribute substantially to the South African economy.
The Mashaba ‘WhatsApp Group’ say they “merely” support “orderly” immigration and other restrictions on (African) immigrants to enter, but eyebrows are raised on why their immigration snag is exclusively about African immigrants, which makes it look prejudicial.
In South Africa, African immigrants have been shame-labelled and accused of spreading “unknown diseases” and, in one infamous tweet by Mashaba, of bringing “us Ebola in the name of small business”.
It has been observed that anti-immigrant narratives tend to reinforce societal prejudices, serving as a “call to fight” for the violent groups.
A Congolse business man in Central Johannesburg said: “So what happens to someone who has a business permit in South Africa and does not have have a permanent residence. I suspect Mashaba is working for some white people who are bent on taking over businesses from Africans in South Africa”.
Furthermore, while section 7(2) of the bill 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.”