Shared History No Excuse to Break SA Immigration Laws - Zulu King Tells Mnangagwa

King Misuzulu kaZwelithini's recent statement to Zimbabwean President Emmerson Mnangagwa, asserting that historical ties do not supersede South Africa's immigration laws, underscores a critical legal and policy stance. This declaration reaffirms the South African government's commitment to enforcing its immigration framework, particularly the Immigration Act 13 of 2002, amidst ongoing challenges of undocumented migration. For legal practitioners, the King's remarks signal a reinforced emphasis on strict adherence to visa and permit regulations, potentially leading to heightened enforcement actions and a continued focus on legalising the status of foreign nationals. The statement highlights the tension between regional integration aspirations, historical cross-border movements, and the sovereign right of a state to control its borders and regulate the presence of non-citizens within its territory.

In a significant pronouncement that reverberated across Southern Africa, King Misuzulu kaZwelithini recently conveyed to Zimbabwean President Emmerson Mnangagwa that the deep-seated historical and cultural ties between communities in the region do not grant immunity from South Africa's immigration laws. This statement, made in the context of persistent debates surrounding undocumented migration from Zimbabwe into South Africa, serves as a powerful reminder of the supremacy of national legislation in matters of sovereignty and border control. It underscores the South African government's resolve to manage immigration within its established legal framework, irrespective of historical narratives that might otherwise suggest a more lenient approach.

The King's remarks are not merely a political or diplomatic gesture; they carry substantial legal implications for foreign nationals residing in or seeking entry into South Africa, particularly those from neighbouring countries. For legal practitioners, this signals a renewed emphasis on the strict application of the Immigration Act 13 of 2002 and its accompanying regulations. The article will delve into the existing legal framework governing immigration in South Africa, analyse the implications of such high-level statements on enforcement and policy, and consider the rights and obligations of foreign nationals in this evolving landscape.

South Africa's immigration landscape is primarily governed by the Immigration Act 13 of 2002, which, along with its subsequent amendments and regulations, provides the comprehensive framework for the admission, residence, and departure of persons from the Republic. The Act's core objectives include regulating the entry and exit of individuals, promoting economic growth by attracting skilled labour and investment, and ensuring national security, while also aiming to prevent xenophobia and deter illegal immigration. Prior to this, the Aliens Control Act of 1991 governed immigration, which was criticised for its human rights implications and eventually repealed.

Under this legislative regime, any foreign national present in South Africa without the requisite visa or permit is classified as an 'illegal foreigner'. The Act confers powers upon immigration officers to detect, detain, and deport such individuals. While the Constitution of the Republic of South Africa, 1996, enshrines fundamental human rights for 'everyone' within its borders, including non-nationals, certain rights are explicitly reserved for citizens. Furthermore, South Africa is a signatory to regional instruments such as the SADC Protocol on the Facilitation of Movement of Persons of 2005, which aims for the progressive elimination of obstacles to free movement within the Southern African Development Community. However, this Protocol explicitly acknowledges that such facilitation must occur in accordance with the national laws of Member States, thereby reinforcing the primacy of domestic immigration legislation.

King Misuzulu's statement serves as a potent reminder that, despite the aspirational goals of regional integration and historical solidarity, the Immigration Act 13 of 2002 remains the cornerstone of South Africa's approach to managing foreign nationals. The Act clearly delineates the requirements for legal entry and residency, distinguishing between various types of visas and permanent residence permits. Any deviation from these prescribed procedures renders a foreign national an 'illegal foreigner', subject to the processes of detention and deportation as outlined in Sections 32 and 34 of the Act.

The deportation process, as detailed in the Immigration Act, involves several stages, including initial detention for verification of status (up to 48 hours), followed by a court appearance to authorise further detention for deportation purposes, which cannot exceed 120 days in total. Foreign nationals must be informed of the decision to deport in writing and in a language they understand, and they retain the right to appeal this decision. However, merely expressing an intention to seek asylum does not automatically grant release from detention, as clarified by the Constitutional Court in *Beneyam Deselegn Ashebo v Minister of Home Affairs and Others* CCT250/22 [2023] ZACC 16. The Court held that while authorities must facilitate asylum applications, an illegal foreigner must show good cause for their illegal entry and stay before being permitted to apply for asylum.

While the Immigration Act is robust in its enforcement provisions, it operates within the broader constitutional framework that guarantees human rights to all persons in South Africa. This includes the right to dignity, equality, and access to courts. Notably, the High Court in the *Centre for Child Law and Others v Minister of Basic Education and Others* [2019] ZAECHC 19 (the Phakamisa Judgment) affirmed the right to basic education for undocumented children, finding certain provisions of the Admission Policy and sections of the Immigration Act unconstitutional insofar as they prevented undocumented non-national children from accessing schooling. This highlights the nuanced balance between state sovereignty and fundamental human rights, particularly for vulnerable groups.

The SADC Protocol on the Facilitation of Movement of Persons, while promoting visa-free entry for short stays and pathways for residence, explicitly defers to national laws for its implementation. This means that while the spirit of regional integration encourages easier movement, the practicalities are dictated by each member state's domestic legislation. South Africa's recent policy outlook, including the rollout of Electronic Travel Authorisation (ETA) and increased border security measures, further indicates a tightening of immigration controls and a focus on legal compliance. The Department of Home Affairs has also been streamlining certain administrative processes, such as waiving medical and radiological report requirements for some visa applications, but these are procedural efficiencies, not a relaxation of the core legal requirements for entry and stay.

For legal professionals, the King's statement reinforces the need to advise clients on the strict adherence to South African immigration laws. The government's stated intention to increase enforcement, prosecute employers of undocumented foreign nationals, and potentially introduce employment quotas for foreign nationals in specific sectors, as outlined in the National Labour Migration Policy, suggests a more stringent environment. This necessitates proactive legal counsel for both individuals and corporate entities to ensure full compliance and mitigate risks associated with non-adherence.

King Misuzulu's unequivocal message to President Mnangagwa serves as a clear signal that South Africa is resolute in upholding its immigration laws, irrespective of historical or cultural ties. For legal practitioners, this reinforces the imperative of advising clients on strict compliance with the Immigration Act 13 of 2002 and its regulations. The ongoing efforts by the Department of Home Affairs to enhance border security, streamline application processes, and increase enforcement against undocumented migration underscore a policy trajectory focused on control and legality.

Practitioners must therefore prepare for potentially heightened scrutiny of foreign nationals' immigration statuses and advise employers on the critical importance of verifying the legal standing of their foreign workforce. While the South African Constitution extends fundamental human rights to all within its borders, the right to reside and work remains contingent on legal authorisation. The tension between regional aspirations for free movement and national sovereignty will continue to shape policy, but for the foreseeable future, legal compliance remains paramount for all foreign nationals in South Africa.