Dignity is SA’s constitutional inheritance, not its weakness

Rather than add another voice to the increasingly binary debate on migration, which now seems to attract fierce reactions with every new intervention, this piece takes a brief step back.

The question is not whether South Africa should have immigration enforcement, as it must. The more important question is what constitutional principles and values should guide that enforcement as the country moves beyond immediate controversy and toward the legislative future contemplated by the Cabinet-approved Revised White Paper on Citizenship, Immigration and Refugee Protection.

What is being exposed, both in government enforcement action and in the vigilante-style campaigns that have erupted in recent months, is something more fundamental than disagreement over migration numbers. It is the weakening of constitutional restraint. There are moments in national life when a country must decide whether its constitutional values are real commitments, or just ceremonial language. Few issues test those values more directly than immigration.

It is easy to defend dignity when there is no political pressure. It is much harder to defend it when unemployment is high, public frustration is rising, communities feel neglected, and migrants become convenient symbols of state failure. But that is precisely when constitutional principle matters most.

The pride of constitutional restraint

South Africans should not speak of their Constitution as though it were an inconvenience to be managed. It is one of the country’s great democratic achievements precisely because it does not pretend that difficult questions have easy answers. It does not require open borders, nor does it disable the state from enforcing immigration laws. It does, however, insist that enforcement be carried out with the discipline of dignity, legality, equality, administrative justice and the rule of law.

Against this backdrop, what should be seen as troubling is the tone that has emerged across parts of social media, where foreigners are too often dehumanised, mocked, blamed collectively for complex social problems, and subjected to language that would be unacceptable if directed at almost any other group. A brief look at many of the posts circulating online shows how quickly legitimate frustration can descend into threatening cruelty.

That should trouble any constitutional democracy.

In a world where many countries are hardening immigration policy, South Africa’s constitutional framework should be treated as a crown jewel, not as a marginal burden. Every state is legitimised to know who enters its territory, administer visas, combat trafficking, exploitation, corruption and document fraud, and protect its labour market from practices that allow employers to treat undocumented workers as cheap and disposable labour.

But enforcement cannot become a substitute for constitutional thought.

SA’s Constitution is distinctive because it begins from the person. It does not say that dignity belongs only to citizens, only to voters, only to the documented, only to the economically useful, or only to those who entered the country lawfully.

Section 10 says that everyone has inherent dignity and the right to have that dignity respected and protected. That word “everyone” is not accidental, it is one of the most important words in the constitutional text. A foreigner, including an undocumented migrant, remains a rights-bearing person.

South African courts have not merely endorsed this concept; they have developed and crystallised it in immigration jurisprudence. In Minister of Home Affairs and Others vs Watchenuka and Others, the Supreme Court of Appeal gave the principle its most memorable expression: “human dignity has no nationality”. The Constitutional Court has repeatedly reinforced the same idea. Taken together, the jurisprudence establishes a simple but important principle: immigration status may affect whether a person may remain in the country, but it does not erase the person. This is where constitutional pride belongs, and where South Africans should stand taller, not in spite of constitutional restraint, but because of it.

Too often, the public debate treats constitutional restraint as softness, when in fact it reflects the discipline of a society that has learned, through its own history, the dangers that arise when the law begins to distinguish between those whose humanity is recognised and protected and those who are relegated to the margins as though they do not count.

Spain’s lesson in legal visibility

A useful point of comparison is Spain’s approach to migrants already living within its borders. Spain is one of the few countries in the present climate that has taken a more constructive approach to migrants already living in its territory, having launched an extraordinary administrative regularisation process for certain undocumented migrants and protection applicants who were already present in Spain before 1 January 2026.

This speaks to a position I have advanced before: that, in appropriate circumstances, a carefully designed regularisation or amnesty process may be more efficient, more lawful and more humane than an enforcement-only model that tries to remove people who are already embedded in a country’s labour market, neighbourhoods and family life. Spain’s approach deserves attention because it recognises a fact often avoided in immigration politics: irregularity is not solved by making people permanently invisible.

Leaving people without status does not create order. It creates a class of people who are easier to exploit, harder to regulate, and more vulnerable to abuse. Regularisation, properly designed, can therefore serve the rule of law. It gives the state clearer knowledge of who is present, allows labour and tax obligations to be enforced, and reduces the space in which unscrupulous employers profit from human precarity. Regularisation is not lawlessness. In the right circumstances, it is the restoration of law to people who are already part of the social and economic fabric.

SA’s constitutional framework is distinctive in the clarity with which it protects the rights of all people within the country and places dignity at the centre of its legal order. That is why South Africans should be careful not to undervalue what they have. The country possesses a constitutional vocabulary that many democracies do not have in the same form. The question is whether political leadership has the courage to use it.

The need for constitutional leadership on migration

President Cyril Ramaphosa’s recent address on migration recognised real concerns. Yet, the speech also revealed what many may regard as a missed opportunity. For months, government departments, political leaders and media commentary have largely focused on enforcement, border control, deportations, documentation and the pressures associated with migration, at times to the extent of legitimising negative sentiment against foreigners and reinforcing the perception that migrants are primarily responsible for broader social and economic challenges. The president’s address largely repeated that familiar framework. What was missing was not another enforcement message, but a constitutional one.

At a moment of heightened public anxiety, the country needed its head of state to speak not only as an enforcer of state authority, but as a custodian of the constitutional values that define SA’s legal order. It needed a reaffirmation that dignity, legality, equality and ubuntu remain the foundation of public policy. It needed a constitutional address before it received another enforcement agenda.

Since when has dignity become disposable? Dignity should not be a policy preference to be activated when convenient. It is not a slogan for Human Rights Day and a nuisance during immigration enforcement. Ubuntu, too, must not be reduced to heritage language. Ubuntu is a constitutional ethic of relational humanity. It insists that the humanity of one person cannot be erased because another person is frustrated, afraid, unemployed or angry.

The danger of the current global mood is that leaders are becoming too willing to compromise principles that should never have become negotiable. History is full of warnings about what happens when economic anxiety is converted into suspicion of outsiders. SA, of all countries, should recognise this pattern. It is not xenophobic to demand a functioning immigration system. South Africans have a right to expect a competent government. But they also have an obligation that honours their heritage to expect constitutional government.

A mature constitutional democracy can say two things at once: immigration laws must be enforced, and human dignity is not negotiable. Borders matter, and so does personhood. Citizenship matters, and so does the humanity of the non-citizen. The state must act, but it must act as a constitutional state.

The Constitution does not spare SA from hard choices. It asks something more demanding: that those choices be made without surrendering the discipline of dignity. SA does not need to choose between a functioning immigration system and fidelity to its Constitution. It needs the political courage to insist on both.

In a world increasingly willing to harden itself against the foreigner, the dignity at the centre of SA’s constitutional order should not be treated as a weakness, but as one of the country’s proudest democratic achievements. DM