Durban - While King Goodwill Zwelithini’s proposal on how foreigners in areas under traditional leadership should be treated has been welcomed by a top criminologist, constitutional law experts say the plan will not fly.
Professor Johan Burger, of the Institute for Security Studies (ISS), said on Monday that the government should pay attention to the guidelines King Goodwill Zwelithini recently set out for foreigners in rural areas.
The senior researcher for the institute’s crime and justice programme said if the king’s guidelines were followed, they were likely to dramatically reduce conflict between locals and legal immigrants.
“I think it would be worthwhile for the government to look at those guidelines,” said Burger.
During the opening of the House of Traditional Leaders in Ulundi last week, the king proposed a set of guidelines for traditional leaders to follow when receiving foreigners to live in their areas.
These include requirements that foreigners who wanted to settle should have the right documents and be introduced to traditional leaders.
The king also gave the government until June 25 to come up with its own guidelines on how to deal with foreigners and said it should provide traditional leaders with training on international laws governing foreigners.
Burger said he doubted whether the king had authority to come up with such guidelines, which were the responsibility of the legislature.
“But I think at the same time there can be justification for taking sensible steps to ensure there is a form of control for anybody, including foreigners, who come to an area controlled by traditional leaders,” he said.
Burger said that the guidelines should be checked and implemented by a legal body.
“There may be something to learn from those guidelines, and they can be made applicable elsewhere in the country,” he said.
Attorney Thandeka Duma, of Lawyers for Human Rights, said she was concerned such action might make foreigners feel discriminated against.
“As long as the foreigners have the correct documents to be in the country, they should be treated equally to any person in the area, except the right to vote,” she said.
UCT constitutional law Professor Pierre de Vos agreed with Duma. He said the regulations would not pass the Constitutional Court test.
He said proposed regulations, such as that foreign citizens should be introduced to traditional leaders and the king accompanied by their countries’ ambassadors, were “preposterous” because they were impractical.
“Some of the guidelines are constitutionally problematic because foreigners would be treated differently from South Africans, which is not allowed.
“Most of the rights in the constitution, including the right to be treated without discrimination, applies to everyone, not only to South Africans.
“These guidelines would not fly at the Constitutional Court,” he said.
The chairman of the House of Traditional Leaders, Inkosi Phathisizwe Chiliza, said the king’s proposals were possible and that a number of traditional leaders had already regulated the existence of foreigners.
“As a result, in some rural areas, these unnecessary, so-called xenophobic attacks are not common. Unlike in areas like Point area in Durban and KwaMashu where foreigners would just flock unnoticed, in rural areas they are being introduced to traditional leaders.
“If they intend to run a shop, it is known what they intend to sell and they are monitored so that they will not at the same time sell drugs,” he said.
He said in areas such as KwaXimba, Mkhambathini, Pongola and Jozini, foreigners had been integrated into communities and operated according to the regulations and customs followed in those areas.
Another political analyst, Protas Madlala, said the king’s proposal was an age-old practice in rural areas. He said traditional leaders had always screened newcomers to their areas.
“The newcomer would have to produce some sort of a document from his previous traditional leader, which would indicate that he had not run away as a criminal,” said Madlala.
Political analyst Imraan Buccus said the state had not done enough to regulate the influx of foreign nationals.
“And there have been levels of not implementing policy correctly. There have been loopholes in the system.
“I think these xenophobic attacks have spurred the state to ensure that it pays greater attention to ensuring that we have adequate policy and a legislative framework, and that we have a competent level of regulation on the ground,” he said.
The Mercury