Xenophobia in the labour market: A South African legal and human rights perspective
| Author | John C Mubangizi |
| Date | 01 June 2021 |
| DOI | 10.1177/13582291211014412 |
| Published date | 01 June 2021 |
| Subject Matter | Articles |
Article
Xenophobia in the
labour market: A South
African legal and human
rights perspective
John C Mubangizi
Abstract
This article focuses on xenophobia in the South African labour market and the effect it
can and does have on foreign employees. In contrast to current scholarship that portrays
xenophobia in South Africa as a consequence of anti-immigrant sentiments and ste-
reotypes that stem from social, political, economic and cultural misconceptions, this
paper argues that the causes of xenophobia are much more complex than that. In
addition to those misconceptions, it is argued, xenophobia in South Africa may well have
its genesis in the pre-1994 apartheid and colonialism era which sought to impose seg-
regation and instill hatred between and among black people. The main argument in the
paper, however, is that the South African legal framework and its implementation do not
go far enough in addressing the problem of xenophobia in the workplace. As a result, the
rights of foreign employees are negatively impacted and not sufficiently protected. To
underscore this point, the paper undertakes a discussion on the legal framework and the
pertinent human rights implications of xenophobia in the South African labour market
before making some recommendations on what can be done to protect the rights of
foreign employees better and reduce or prevent xenophobic attacks against them.
Keywords
Xenophobia, human rights, foreign employees, legislation, labour market
Faculty of Law, University of the Free State, Bloemfontein, South Africa
Corresponding author:
John C Mubangizi, Faculty of Law, University of the Free State, Bloemfontein, South Africa.
Email: MubangiziJC@ufs.ac.za
International Journalof
Discrimination and theLaw
2021, Vol. 21(2) 139–156
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13582291211014412
journals.sagepub.com/home/jdi
Introduction
Xenophobia is not only a social problem; it is also a legal problem. It is not a South
African problem – it is a global problem. In both Europe and the United States, xeno-
phobic rhetoric and hate crimes are on the increase. In Europe, xenophobia is part of a
growing tide of hatred against migrants, mainly fuelled by far-right parties. In the United
States, the recent increase in xenophobia is partly due to outgoing President Donald
Trump’s anti-immigration policies and open hostility towards foreigners. In China, many
Africans were left homeless amid rising xenophobia during the coronavirus/CORVID-19
resurgence in that country in March/April 2020. The focus of this article, though, is on
South Africa where ‘xenophobia can be traced back to the pre-1994 era when immi-
grants
1
faced discrimination and violence, even though this stemmed from institutiona-
lised racism due to apartheid’.
2
More specifically, the article focuses on xenophobia in
the labour market and workplace and the human rights implications it can and does have
on foreign employees. Generally, after 1994, incidents of xenophobia in South Africa
increased, despite contrary expectations. Between 2000 and March 2008, at least
67 people died as a result of xenophobic attacks.
3
In May 2008, xenophobic riots left
an extra 62 people dead.
4
In 2015, another nationwide spike in xenophobic attacks
prompted a number of foreign countries to begin repatriating their citizens. More
recently, in 2019, at least 12 people lost their lives and more than 1500 were forced
to flee their homes due to xenophobic violence.
5
This paper begins with a conceptual context of xenophobia in South Africa before
analysing its causes, including poverty, inequality, and socio-economic conditions. In
contrast to current scholarship that portrays xenophobia in South Africa as a conse-
quence of anti-immigrant sentiments and stereotypes that stem from social, political,
economic and cultural dynamics,
6
this paper argues that the causes of xenophobia are
much more complex than that. In addition to those dynamics, it is argued, xenophobia in
South Africa may well have its genesis in the pre-1994 apartheid and colonialism era
which sought to impose segregation and instil hatred between and among black people.
The main argument in the paper though, is that the South African legal framework and
its implementation do not go far enough in addressing the problem of xenophobia in the
workplace and the human rights of foreign employees are accordingly negatively
impacted. This argument is based on existing international lega l framework and the
relevant domestic legal framework including labour law and human rights legislation
with provisions relating to xenophobia and associated discrimination in the South
African labour market. The forementioned legal framework is discussed. The role the
judiciary can and does play is also explored through the relevant case law before making
recommendations and concluding remarks on what can be done to protect the rights of
foreign employees and reduce or prevent xenophobic attacks against them.
Conceptual context
A lot has been written and said about xenophobia in South Africa – particularly in media
tabloids. There have also been several attempts at scholarly writings on the subject. Most
of the writings and studies, however, have tended to be descriptive in nature providing
140 International Journal of Discrimination and the Law 21(2)
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