Nativism in South African municipal indigent policies through a human rights lens

Abstract

The dawn of constitutional democracy in South Africa triggered a new wave of immigration into the country. Foreign migrants post-1994 now make up about seven per cent of the country’s population. The majority of the new intake are Africans pursuing economic opportunities, or refugees seeking asylum. The convergence of South African citizens and foreigners, especially in the country’s major cities, generates competition over space and limited social welfare services which at times degenerates into conflicts with dire consequences. Some South African Ministers and local government leaders have resorted to a nativistic discourse to address competition over limited welfare services and to shield themselves for the failures of the State to achieve the large-scale egalitarian transformation envisaged by the Constitution of the Republic of South Africa, 1996. This article uses local government indigent policies to show how several South African municipalities use citizenship as a mandatory condition for accessing free basic services, and discusses how the institutionalised blanket exclusion of foreigners from accessing these services violates the obligation of non-discrimation which is protected in international and South African human rights law. Against the backdrop of the government’s socio-economic rights obligations, this article argues that it is necessary for some municipal indigent policies to be amended to at least cater for the basic needs of indigent foreigners with a permanent residence permit and those with official refugee status in South Africa. It is argued that the blanket exclusion of these categories of destitute non-citizens without consideration of their immigration status fails to distinguish between those who have become part of South African society and have made their homes in the country and those who are in South Africa on a transient basis.