Ubuntu, the Constitution and the Rights of Non-citizens

• Jurisdiction: South Africa
• Author: JY Mokgoro
• Published date: 16 August 2019
• Date: 16 August 2019
• Citation: (2010) 21 Stell LR 221
• Pages: 221-229

221

UbUntU, the ConstitUtion and the

Rights of non-Citizens

J Y Mokgoro*

Former Justice of the Constitutional Court

Extraordinary Professor, University of Stellenbosch**

1 Introduction

A recent report by t he United Nations D evelopment Progra mme (UNDP)

estimates that nearly one billion people worldwide are migrants.1 Of these,

214 million are international migrants.2 South Africa, the leadi ng economy

in Sub- Saharan Africa and known for its political stability, attracts a larger

proportion of foreign migrants than the global average.3 Curre ntly, the UNDP

estimates that there are nearly 1.5 million foreign mig rants in ou r country.4

Although there a re increasing numbers of people in se arch of asylum, the

majority of foreign migrants are looki ng for employment.5 Most foreign

migrants e ntering South Afr ica are f rom the Southern A frican Development

Community (SADC) countr ies, in part icular Mozambique, Lesotho and

Zimbabwe.6 T he economic inst ability in neighbou ring Zimbabwe has led to

an increase of in the nu mber of migrants f rom this country in recent years.7

The Constitutional f ramework within which immigration legislation and

policy functions, allows for the respect, promotion and fullment of the rights

in the Bill of R ights for all those who live w ithin our borders.8 Of course,

certain rights in the Bill of Rights, as in most ju risdictions, are re served for

citizens. The remainder of the rights, subject to the limitation clause in section

36 of the Constitution, may be enjoyed by citizens and foreign nat ionals alike

– in particular the socio-economic rights , t o which “everyone” is entitled. The

notion that a society can respect and entrench in its b asic law, and act ually

enforce particularly the socio-economic rights of foreign nationals, may be

viewed as a reection of a commitment to a spirit of generosity characterising

such societ y. In the context of the ideals of ubuntu, a notion translata ble as

encompassed by the spi rit and pu rport of our Constitution - it is envisaged

* I acknowled ge with than ks the researc h assist ance of my law clerk s at the Constitutiona l Cour t, Ms

Lorette A rendse and Ms Olivia Ru mble

** This publ ic lecture wa s delivered at t he Faculty of La w of the Universit y of Stellenbosc h on 13 October

2009 and forms par t of the Faculty’s annual constitution al law public lecture series , sponsored by Webber

Wentzel Bowens

1 Blerby “Use immigra nts’ skills, says U N” Business Day (20 09-10-06) 2

2 Blerby Business Day (20 09-10-06) 2

3 International Federation for Human Rights (FI DH) Intern ational Feder ation for Human Rights Report

“Surplus Peo ple? Undocumented a nd other Vulnerable Migr ants in South Afric a” (2008) 8

4 Blerby Business Day (06 -10-2009) 2

5 FIDH Internation al Federation for Huma n Rights Report 8

6 8

7 8

8 See s 7(2) of the Constitution of the Re public of South Afric a, 1996

(2010) 21 Stell LR 221

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