EXPLAINER: Does South African law allow citizens to arrest undocumented migrants?

As the country gears up for planned demonstrations against illegal migration on Tuesday, 30 June, the South African government has reiterated pleas for citizens not to take immigration law enforcement into their own hands. In a press briefing in Pretoria on 26 June, Justice Minister Mmamoloko Kubayi said: “We must emphasise... we can work together as stakeholders but in terms of law enforcement, it remains the responsibility of law enforcement.”

Leaders of the planned demonstrations have dug in their heels over their intentions to conduct citizens’ arrests. During a press conference on Wednesday, 24 June, the president of the Progressive Forces of South Africa, Mthetho Ngcukayitobi, said they have a right to make arrests based on existing case law.

“When [we] speak about the citizen’s arrest, that is section 42 of which it goes with the Criminal Act of 51, 1977. As private citizens we do have a right to make those arrests,” Ngcukayitobi argued.

“Now, when you go into the section itself, it speaks about a schedule 1 offence. There was a court case that happened in 2022 of a Malawian who obviously was not [compliant] with [the] Immigration Act; it was found in the courts that it was a schedule 1 offence. So, as citizens of the country, we do have that right.”

A citizen’s arrest is a legal mechanism that allows private citizens to detain someone committing or suspected of committing a crime. In South Africa, section 42 of the Criminal Procedure Act 1977 (CPA) details the circumstances under which a citizen’s arrest may be conducted.

According to the law, any private citizen may arrest any person without a warrant:

• Who commits or attempts to commit in his presence or whom he reasonably suspects of having committed a schedule 1 offence;
• Whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence;
• Whom he is by any law authorised to arrest without warrant in respect of any offence specified in that law; and
• Whom he sees engaged in an affray (brawl).

Private citizens who conduct arrests must immediately hand suspects over to the police.

The contentious issue has been what qualifies as a schedule 1 offence. According to the CPA, schedule 1 offences cover a range of crimes including treason, rape, public violence, assault and kidnapping. But immigration violations are more complex.

The legal sleight of hand

To justify targeting undocumented migrants, demonstration leaders have employed a complex legal sleight of hand. When asked which court case he was referring to, Ngcukayitobi provided Daily Maverick with a screenshot of a judgment from a 2024 bail application case, Afali v the State, heard at the Eastern Cape High Court in Makhanda.

The case involved a Malawian national who had been charged with contravening section 49(1)(a) of the Immigration Act by entering and staying in the country illegally. He was appealing the decision made by a magistrate to deny him bail.

The portion of the judgment provided by Ngcukayitobi states:

“The appellant is a Malawian National, he was arrested on 22 August 2024, he is charged with one count of contravening Section 49(1) (a) of the Immigration Act 13 of 2002. During the bail proceedings in the court a quo both the State and the defence agreed that the offence falls under schedule 1 of the CPA.”

Ngcukayitobi argues that this proves that contravening the Immigration Act is universally a schedule 1 offence, thereby granting citizens the right to arrest undocumented migrants. But legal experts say this is misleading.

No legal right to arrest migrants with pending applications

Daily Maverick asked Dr Llewelyn Curlewis, a senior lecturer in procedural law at the University of Pretoria, to assess this interpretation. He said the outcomes of specific bail applications should not be confused with a general right to arrest. Furthermore, being in the country illegally does not automatically permit a citizen’s arrest, since constitutional protections still apply.

“In the case referred to, the court did not have that difficulty since both the State and defence agreed beforehand to treat the matter as a schedule 1. It is not always so,” Curlewis explained, adding that it is difficult for a civilian to distinguish who is actually a schedule 1 offender on the street.

Curlewis noted that citizens have no right to arrest individuals whose visa applications are still being processed by the state. In particular, asylum seekers are treated differently under the law than ordinary undocumented migrants.

“It will, as a result, be unlawful to arrest any person who indicated that he duly applied for, say, a work visa, which is pending and where the delay, for example, is not a result of his or her own doing,” he said.

This is important to consider in a context where Home Affairs has recorded historic backlogs in processing applications for visas and permits. In May, Home Affairs confirmed that the backlog for asylum appeals alone sat at about 161,000 cases, of which 70,976 are active.

To manage this, Home Affairs announced a temporary directive in March extending the validity period for foreign nationals with pending permit applications until 30 June 2027.

“Visa holders who have applied for long-term visas in terms of sections 11(1)(b) to 20, including section 22, of the Immigration Act, who are still awaiting the outcome of their applications as at the date of signature of this Directive, are granted a further temporary extension of their current visa status until 30 June 2027. Applicants are not allowed to engage in any activity other than what the current visa conditions provide for,” the announcement said.

This provision means applicants for visa waivers, permits and appeals will retain their legal status until the 2027 date, provided they can produce proof that they applied before the directive came into effect on 1 April.

In other words, there are currently foreign nationals whose permits may have expired but are residing in the country lawfully.

No legal right to demand documents

Compounding this is the fact that private citizens do not have the right to stop, search or demand proof of valid permits from anyone. Both the South African Police Service and the Presidency have repeatedly stated that only police and immigration officers have the right to demand to see documents.

In his address on 7 June 2026, President Cyril Ramaphosa said: “I must make it clear that only the authorised government officials may act against violations of the law, including violation of our immigration laws.”

And on Wednesday, KwaZulu-Natal’s acting provincial commissioner, Major-General Phumelele Makoba, said no civilians are permitted to demand documents.

“We are reminding those who will be engaging in marches that no civilian is allowed to search a fellow civilian and no civilian has a right to demand any form of identification or confirmation of nationality. That is the duty of law enforcement officers,” Makoba said.

As a result, it would be unlawful for anyone to attempt a citizen’s arrest on the basis that a foreign national did not show them documents.

Curlewis warns that those who attempt to conduct citizens’ arrests outside of the law would be committing a serious offence themselves.

“Then you are actually assaulting that person because you’re taking away his freedom and you are basically abducting that person which means that huge civil lawsuits could possibly follow against the person that arrested the person unlawfully,” he said.

“So, there must be legal grounds and lawfulness before you can arrest [someone]. Even as a citizen, the law does not tolerate making an arrest left, right and centre without a proper foundation to underlie the legality of that arrest.”

The SAPS has issued warnings that it will arrest any person who is found breaking the law on Tuesday. DM