Is Gauteng’s plan to ban foreigners from opening businesses in townships unconstitutional?

Source: News24, 01/10/2020

*News24 spoke to five legal experts about whether**the draft
legislation was unconstitutional, or not. *
The Gauteng provincial government last week released draft
legislation that would see foreign nationals being barred from
opening and operating certain businesses in the province`s
townships.
And if they were found to be in contravention of the legislation,
foreign nationals may be jailed for up to six months.
The `Gauteng Township Economic Development Draft Bill
https://www.gauteng.gov.za/Publications/1C89C330-242B-4A5B-94F5-
2D693D3E363A>` said its intention was to promote and develop the
province`s township economy by regulating the township economy,
and encouraging township procurement.
Among the proposals was that it hoped to `designate business
activities within the township areas that are reserved
[exclusively] for citizens and persons who have permanent
residency status in the Republic`.
The proposal sparked praise and criticism, with social media users
expressing concern that it may help to fan the flames of
xenophobia in South Africa.
News24 spoke to five legal experts about why the draft legislation
may be considered unconstitutional, and why it may be
constitutional.
*Why may the draft legislation be considered unconstitutional?
University of Western Cape (UWC) law lecturer Yvette Basson said
section 9 of the Constitution provided that `everyone is equal
before the law`.
`Although it is not expressly stated, the reservation of these
activities for citizens and permanent residents effectively
excludes refugees, asylum seekers and other foreign workers from
engaging in those reserved economic activities,` Basson told
News24.
`This may be considered unfair discrimination on the basis of
nationality.` She said Section 9 subsection 3 furthermore stated
that no person may be discriminated against on the basis of their
nationality.
`In order for such an exclusion to be constitutional, it must be
connected to a rational purpose. I am not convinced that such a
rational purpose has been made clear in the Bill.`
University of Johannesburg International Law professor Hennie
Strydom said the bill may face a number of constitutional
challenges.

`[The provincial government] will have to show that the exclusion
of certain categories of people from the benefits of the Bill is
rationally connected to the objectives of the Bill,` Strydom told
News24.
`For instance, it may be argued, and proven, that a more inclusive
approach may be even more beneficial to and supportive of the
township economic development the Bill has in mind.`
UWC law lecturer Tinashe Kondo said the draft bill also
interrupted the rights granted to holders of business visas in
terms of the Immigration Act, and the provincial legislation could
therefore be in conflict with national legislation.
Professor Loren Landau, from Wits University`s African Centre for
Migration & Society, added that provinces and municipalities were
allowed to regulate general working conditions and business
formation.
`However, it is constitutionally prohibited to exclude a category
of people from the labour or business marketplace who the national
government has granted the right to work,` Landau told News24.
`Given that immigration regulations are an exclusively national
capacity, Gauteng is out of its lane.` Furthermore, once a person
was authorised to live in the country, the courts determined that
they had a right to sustain themselves, Landau said.
`To exclude any group legally in the country based on their
origins â€` be it religious, racial, linguistic, or geographic - is
a direct violation of the principle of equal protection guaranteed
by Section 9 of the Constitution.`
The Legal Resources Centre’s Petra Marais said the Bill did not
make provision for different categories of foreign nationals, such
as recognised refugees, asylum seekers and persons with
immigration visas.
`[It] rather provides for a blanket exclusion of all persons other
than citizens and permanent residents,` Marais told News24.
`If the Bill, specifically the blanket exclusion of certain
categories of persons, is challenged it will have to pass the
rationality test to show that there is a legitimate purpose
between the Bill and the aim which it seeks to achieve.`
*Why may the draft legislation be constitutional? Landau said the
state had the right to regulate foreign participation in the
marketplace provided there were compelling reasons and legal
foundations for doing so.
`No one, for example, complains that foreigners are excluded from
high level positions in the security cluster. Or that foreign
medical staff must re-qualify to work in the country,` Landau
said.
`Already, people without appropriate immigration authorisation are
already largely prohibited from working or receiving benefits.`
Kondo added that the proposed state measures in the bill, to the
extent that they excluded certain foreign national from economic
participation, constituted discrimination on the basis of social
origin.

`The measures, however, do not constitute unfair discrimination,`
Kondo told News24.
He said he came to this conclusion based on the Constitutional
Court`s findings in Union of Refugee Women & Others v Director:
Private Security Industry Regulatory Authority & Others in 2007,
where the court sought to determine whether the non-employment of
refugees as private security constituted unfair discrimination.
`It held that there was a rational and legitimate government
purpose in the making of such a provision. Therefore, the
discrimination could be characterised as being fair,` Kondo said.
`It was further found that while refugees are similarly situated
to permanent residents, they could, however, not be treated as
such as they had not met the requirements for permanent
residence.`
Kondo said the logic applied by the courts during that case was no
different to the Gauteng draft bill.
He said previous constitutional rulings also made it clear that
the right to freely choose trade, occupation or profession was
limited to citizens and permanent residents, and courts had been
hesitant to include other categories of people.
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