Herman Mashaba, leader of Action SA and former mayor of Johannesburg, has unleashed a tirade against undocumented, or perhaps all, immigrants who are in SA illegally.

This is not the first time Action SA has raised the issues around illegal immigration into SA. Previous claims by the party that there are 15 million illegal immigrants in SA have been debunked by fact checkers.

According to Stats SA, it estimates that there were 3.96 million undocumented immigrants in South Africa by 2022, when the most recent census was held. However, there are no accurate current estimates of the number of undocumented migrants in South Africa. It is now 2025 and a tidal wave of refugees from the brewing conflict in Mozambique can be expected soon if the political instability following disputed elections there turns more violent than it already is.

One wonders whether Mashaba’s outburst is in anticipation of the flood. Conditions in Zimbabwe, the home country of most illegal immigrants in SA, are not conducive to staying at home, so a flow of immigrants across SA’s northern and eastern borders can reasonably be expected in the near future. It is to be hoped that Mashaba does not have these wretched and vulnerable people in his sights.

Lest we forget, it is worth noting that Zimbabwe is a failed state today at least in part due to the “quiet diplomacy” of the Mbeki administration that allowed Mugabe to steal an election in the face of a report from the SA judiciary that the election in question was neither free nor fair. Mbeki will go down in history for his AIDS denialism, his role in the arms deals and the failed quiet diplomacy in Zimbabwe.

There is also a debt of gratitude due by SA to the people of Zimbabwe and Mozambique who gave shelter, comfort and succour to those involved in the freedom struggle in SA.

The constitutional dispensation in SA is welcoming of refugees and asylum seekers. The state is required to respect, protect, promote and fulfil the human rights of all, not only citizens. When it comes to children, those singled out by Mashaba as displacing citizens in schools, it is apposite to refer to the provisions of section 28(2) of the Bill of Rights:

A child’s best interests are of paramount importance in every matter concerning the child.

Ours is a society, which according to the Preamble to the Constitution, is based on democratic values, social justice and fundamental human rights. Section 9, the equality clause, of the Bill of Rights says:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

It does not behove Mashaba to rail against the children who happen, by accident of birth, to have their country of origin outside the borders of SA. He is guilty of unfairly discriminating against these children in his diatribe against them.

The Universal Declaration of Human Rights, to which SA is a party, entrenches freedom of movement and the right to claim asylum in its 13^th and 14^th clauses.

Undocumented immigrants in SA are not entitled to SASSA grants but can claim UIF benefits, and must pay taxes like everyone else, especially so in respect of VAT which is unavoidable to all economically active law-abiding persons who find themselves in the country.

The lack of effective border control measures in SA is hardly the fault of the children being targeted by Mashaba. They are here with very little personal choice in the matter. The porous nature of the borders is due to a failure on the part of government, whether through deliberate means, via negligence or due to incompetence of officials, to attend to the porousness of the borders by properly monitoring cross border traffic.

Effective and efficient use of resources in the public administration, as required by Section 195(1)(b) of the Constitution is the responsibility of the state. Any failure on this front is the occasion for questions in parliament, complaints to the SAHRC and to the Public Protector. Public interest litigation is also possible if all else fails. Where instances of bribery and corruption are revealed, reporting the matter to the police is indicated. If the police are less than effective and efficient, there is IPID – The Independent Police Investigative Directorate, to which Mashaba could complain instead of picking on undocumented children.

Action SA ought to take steps to align its leader with constitutional values.

Paul Hoffman SC is a director of Accountability Now.