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Report of the Special Rapporteur on the human rights of migrants, A/HRC/17/33/Add.4, 2 May 2011: South Africa


A. Constitutional and legal guarantees

22. The Special Rapporteur was informed of the strong constitutional and legal guarantees that protect all persons in South Africa against deprivation of liberty and the progressive enumeration of social and economical rights, which prohibits discrimination in access to public services such as health care, education and social security.

23. The Constitution is the supreme law in South Africa. In the preamble, it acknowledges the injustices of the past and dedicates the nation to building a democratic and open society. The Constitution contains 14 chapters and 7 schedules. Chapter 2 (sects. 7-39) contains the Bill of Rights, which is regarded as one the most progressive of the world. Most of its provisions apply to all persons in the country, whether they are citizens or not or have legal status of stay or residence. In particular, section 9, the provision guaranteeing equality of all persons, states that.:

  1. Everyone is equal before the law and has the right to equal protection and benefit of the law;
  2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken;
  3. The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

B. Absence of anti-immigrant stance in political discourse

27. The Special Rapporteur was informed that a hate crime bill was currently being prepared by the Department of Justice and Constitutional Development, in charge of drafting bills proposed by the Government. The bill would strengthen the measures already contained in the Constitution and other applicable laws to address violence against foreign nationals (including asylum-seekers and refugees), and would expressly criminalize violence committed against individuals or their property on the basis of a person’s race, nationality, religion, ethnicity, sexual orientation or gender identity (“hate crime”). This would follow the introduction in 2009 of a law combating human trafficking, currently tabled in Parliament. In the meantime, plans for a potential law against smuggling are still being prepared.


77. The Special Rapporteur encourages the Government to introduce as soon as possible the hate crime bill, which is currently being finalized by the Department of Justice and Constitutional Development, given the fact that general provisions included in the Constitution and the Criminal Code are not effective enough in protecting migrants from discrimination based on nationality. Migrant communities should be consulted and encouraged to participate in the process of elaboration of this law. The law should, in particular:

  1. Make any act of violence against individuals or property on the basis of a person’s race, nationality, religion, ethnicity, sexual orientation or gender identity (“hate crime”) an aggravating circumstance;
  2. Provide effective resources and training for police, justice and other relevant officials to ensure the successful implementation of the provisions of the law, including training on detecting, recording and prosecuting hate crimes, as well as monitoring any trends in them.

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