INSIGHT | President’s directive on foreign nationals is clear, but will it be put into practice?

When President Cyril Ramaphosa rose to deliver the State of the Nation address (Sona) in Cape Town last Thursday, few remarks landed with as much weight as those directed at the treatment of foreign nationals. His words were unambiguous: “We will not tolerate violence and acts of lawlessness directed at foreign nationals. “No foreign national should be unlawfully barred from accessing public facilities, including health facilities and schools.” For those who follow constitutional jurisprudence, the statement was not merely political rhetoric.

It was a reaffirmation of a legal order that has resisted the impulse to condition basic human rights on citizenship. It was also a reference to a body of case law that has built a firewall against xenophobic exclusion, chief among them the Constitutional Court’s judgment in Khosa and others v minister of social development and others. That case, decided in 2004, involved a challenge by Mozambican permanent residents denied social grants under legislation, restricting such benefits to citizens.

The court found the exclusion unconstitutional. It held that the right to social security, enshrined in section 27 of the constitution, was not confined to citizens. To deny permanent residents access to these basic supports was to deny them their dignity and entrench unjustifiable differentiation.

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The reasoning in Khosa has travelled. It has been cited in matters involving access to healthcare, housing, and education. While the judgment dealt specifically with permanent residents, its logic resists tidy limitation.

If the constitution speaks of “everyone” in provisions that matter most (dignity, equality, life, healthcare, basic education) then the burden falls on the state to justify exclusion, not on the individual to prove belonging. This is the jurisprudential backdrop against which the president’s address must be understood.

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