Illegal immigrants in South Africa

It can be said that South Africa’s challenging circumstances coupled with its laws,
make the illegal immigrant’s experience of this country an unpleasant one. In an
effort to comprehend what an illegal immigrant is the effects of the causes of
immigration will be evaluated using Zimbabwe and Mozambique as case studies. In
order to narrow the focus of this essay the situation of the illegal immigrant in South
Africa will be looked at by focussing on resource distribution namely health services
and the illegal immigrant’s effect on the labour market considering economic
constraints in South Africa. The illegal immigrant’s standing in the law will also be
evaluated, specifically in the Constitution. It is these factors that enable a
comprehensive understanding of not only the effects illegal immigrants have on
South Africa but also what causes illegal immigration.

Analysing the official definition as well as causes of illegal immigration is important

before analysing the effects illegal immigration has on the country. The Citizens Act
88 of 1995 defines an ‘alien’ as a person who is not a South African citizen. 1 While
the South African Human Rights Commission defines an illegal immigrant as a non-
national in the country without the authorisation of the Department of Home Affairs. 2
The general causes and effects of immigration vary. For example, in Zimbabwe
years of economic downfall caused by political mismanagement result in poor living
conditions in the country and force Zimbabweans to look for opportunities
elsewhere.3 By comparison the immigration in a country like Mozambique is caused
by war and political instability.4 These countries are important because most of South
Africa’s immigrants originate from them.

The law of South Africa, particularly the Constitution plays a big role in determining
the experience of illegal immigrants. Thus evaluating their standing in the
constitution will add to the larger understanding of the illegal immigrant in South
Africa. The constitution recognises and extends protections to all people in South
Africa including illegal immigrants5 This includes protections under section 9
prohibiting discrimination on the grounds of race, colour, ethnic or social origin and
birth.6 At the same there are limitations to the rights that can be granted to illegal
immigrants. For instance political rights, entering and residing in the country and

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freedom to occupation although it must be noted that these rights are extended to
legal immigrants.7 The constitution gives a broad understanding of the rights of illegal
immigrant while it is clear that illegal immigrants are protected those protections are
not as far reaching as those of citizens.

In order to live a person must be able to provide for themselves. Once illegal
immigrants arrive in South Africa they look for employment opportunities. Thereby
making South Africa’s labour market and how illegal immigrants relate to it an
important aspect to analyse. The Constitution leaves the regulation of labour laws to
national legislation. In this regard the immigration act prohibits the hiring of illegal
immigrants.8 This stance on employment of illegal immigrants makes illegal
immigrants turn to informal sector jobs where there is limited state oversight. Here
they compete in South Africa’s saturated low skilled labour market where 41%
cannot find work.9 This not only causes tensions between locals and illegal
immigrants over scarce opportunities but also influences policy. For instance,
according to Crush in 2000, the government offered legalization amnesties to
longstanding contract workers, SADC country citizens resident in South Africa, and
ex-Mozambican refugees in effort to compensate for the actions of the apartheid
government. However, this initiative was quickly scrapped after much opposition
from voters.10 In summary a lack of limited employment opportunities and restrictive
legislation makes it impossible for illegal immigrants to get legal gainful employment
and it puts them in competition with unskilled South Africans.

Resource distribution is a contentious issue in South Africa particularly due to

economic constraints, this extends to health care. A combination of state inefficiency,
overburdened state medical practitioners and limited resources make seeking health
care a challenging task for illegal immigrants. Firstly, it is no secret that South
Africa’s health care system struggles to provide for citizens. For instance in the case
of Soobramooney v the KZN Department of Health, the state admitted that it was
unable to offer dialysis treatment to all citizens who need it due to a lack of trained
staff and machines.11 Additionally the state fails to manage and administer limited
resources. For example the Department of Home Affairs consistently fails to process
appeals and overstays after final rejections. As a result it becomes difficult to

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differentiate between asylum seekers and illegal immigrants, who have different
socio-economic rights.12 The situation becomes even more complex for medical
practitioners when considering that the Immigration Act mandates medical
practitioners to verify a patient’s legal status before giving treatment 11. While, as
previously discussed, the Department of Home Affairs fails to process information
that would make verification possible. This means that in addition to doing their work
with limited resources medical practitioners are also burdened with having to decide
who is deserving of medical treatment. This means a slower administrative process
and a stretched resources. Making it difficult for citizens to gain access to services
they are entitled to.

South Africa has a long and storied history with immigration. However, its
relationship with illegal immigration is of particular importance, due to its effects on
what is a challenged country. The catalysts and implications of illegal immigration as
well as the laws of South Africa determine how an undocumented person will
experience this country and how they will affect South Africa.

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Bibliography
Alfaro-Velcamp T
2016. “Don’t send your sick here to be treated, our own people need it more”:
immigrants’ access to healthcare in South Africa. International Journal of Migration,
Health and Social Care 13 (1):30.
Crush J
2000. The Dark Side of Democracy: Migration, Xenophobia and Human
Rights in South Africa. International Migration 38 (6):109.
Mubangizi JC
2021. Xenophobia in the labour market: A South African legal and human
rights perspective. International Journal of Discrimination and the Law 21 (2):130-
146.
Solomon H
1996. Strategic Perspectives on Illegal Immigration into South Africa. African
Security Review 5 (4):24-32.
Woke A, Klein S
2002. The implications of South Africa's skills migration policy for country
competitiveness. Routledge Taylor and Francis Group 19(4): 442.
Legislation
The Citizenship Act 88 of 1995.
The Constitution of the Republic of South Africa of 1996.
The Immigration Act 13 of 2002.
Case Law
Soobramooney v Minister of Health (KwaZulu-Natal) 1997 (1) SA 765 (CC)