There is a fundamental absurdity at the heart of South Africa’s treatment of Basotho nationals who fall foul of its immigration laws.
A Mosotho enters South Africa legally and overstays, even by a day or more. South African immigration authorities declare that person undesirable and prohibit them from entering the Republic for up to five years. The person is deported to Lesotho, but the question that follows is one our two countries can no longer afford to ignore: what happens then?
The Kingdom of Lesotho is one of only three sovereign states in the world entirely surrounded by a single country, alongside Vatican City and San Marino, both of which are surrounded by Italy. But the circumstances of Lesotho are manifestly different from those European microstates. More than two million people live in Lesotho, surrounded entirely by South Africa. Every road out of our country leads through South Africa, our only rail link runs through South Africa, while our principal international air connections depend on access through South Africa.
A Mosotho who is declared undesirable is therefore not simply banned from one foreign country. In practical terms, that person is trapped within the borders of Lesotho.
That is the question South Africa must answer: can an immigration law, applied without regard to Lesotho’s unique geographical circumstances, lawfully impose consequences that extend far beyond South Africa’s legitimate right to control entry into its own territory?
I do not dispute that South Africa is a sovereign state with the right to enforce its immigration laws. Nor do I suggest that Basotho nationals should be free to disregard the immigration laws of the Republic without consequence. The question is whether the consequence is rational, proportionate and just.
Under South Africa’s current immigration regime, a foreign national who overstays may be declared undesirable and prevented from re-entering the Republic. South African law also requires a person travelling from one country to another through South African territory to possess the necessary authority to transit the Republic. The combined effect for a declared undesirable Mosotho national is therefore potentially extraordinary. South Africa’s immigration sanction restricts not only that person’s access to South Africa but their practical ability to reach the rest of the world.
This cannot simply be dismissed as an unfortunate consequence of geography because geography is precisely the point.
South Africa did not create Lesotho’s geographical circumstances, but it cannot formulate and apply immigration policy as though those circumstances do not exist. Our two countries are bound together in ways that ordinary neighbouring states are not. Families live across the border. Basotho work, study, trade and seek medical treatment in South Africa. South African companies dominate the Lesotho business landscape, spanning retail, telecommunications, banking and construction. These include Shoprite, Pepkor, Vodacom, Standard Bank, FNB and Nedbank. Our economies are deeply interconnected. Through the Lesotho Highlands Water Project, Lesotho supplies water into the Vaal River System, on which South Africa’s economic heartland, major industries and agricultural sectors depend. The movement of people between the two countries is not an exceptional occurrence, but part of the daily reality of our shared existence.
South Africa itself has already acknowledged this reality. The introduction of the Lesotho Special Permit in 2015 was intended to regularise the position of tens of thousands of Basotho living in South Africa. It was followed by the Lesotho Exemption Permit. These arrangements were, in themselves, an acknowledgement that the relationship between Lesotho and South Africa cannot always be managed through ordinary immigration mechanisms designed for countries separated by oceans, multiple borders or alternative transport routes.
The special circumstances of Lesotho require special consideration. Deportation has become a revolving door. A person is deported to Lesotho, only to return illegally to South Africa because the economic and social forces driving migration have not disappeared. Criminalisation, deportation and prohibition have not solved the problem. In many cases, they merely recycle it.
We need a different approach. Basotho nationals who contravene South Africa’s immigration laws should face consequences, but those consequences need not automatically take the form of deportation and prohibition. A system of graduated financial penalties, administrative sanctions and appropriate mechanisms for regularisation would punish non-compliance without imposing a sanction whose consequences are uniquely severe because of Lesotho’s geography.
South Africa’s Constitutional Court has repeatedly demonstrated that immigration law does not exist beyond the reach of constitutional scrutiny. Foreign nationals within South Africa are not without rights, and administrative decisions by immigration authorities must comply with the Constitution and the law. The Court has intervened where the application of immigration legislation has produced consequences inconsistent with constitutional protections.
South Africa cannot exercise its sovereign right to regulate immigration without considering the extraordinary consequences of effectively restricting the movement of citizens of an enclave state. The issue is not whether a Mosotho national has an unrestricted right to enter South Africa. Clearly, no such general right exists. The issue is whether South Africa may impose an immigration sanction that, because of geographical circumstances almost unique in the world, potentially prevents a citizen of another sovereign state from travelling beyond his or her own country.
That distinction matters because a declared undesirable Zimbabwean can travel to Botswana, Zambia or Mozambique without entering South Africa. A declared undesirable Mozambican has alternative borders. Citizens of virtually every other country have some means of leaving their territory without crossing the state that has declared them undesirable. Basotho do not.
South Africa cannot apply identical rules to fundamentally different circumstances and then claim that the outcome is equal. Equality before the law does not require blindness to reality.
For decades, relations between Lesotho and South Africa have been characterised by an uncomfortable contradiction. Our countries acknowledge their exceptional interdependence when economic, political and security circumstances demand it, yet ordinary Basotho are too often subjected to administrative systems that pretend Lesotho is simply another foreign country.
Lesotho is not simply another foreign country. The Kingdom’s sovereignty must be respected, as must the Republic’s. But sovereignty should not prevent neighbouring states, particularly two countries joined by such extraordinary geographical and historical circumstances, from developing immigration arrangements grounded in practicality, proportionality and human dignity. Until that happens, South Africa will continue to apply an immigration framework designed for ordinary neighbours to a relationship that is anything but ordinary.
