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Protecting Children on the Move in South Africa: Legal Frameworks, Lived Realities, and Systemic Challenges
In South Africa, the protection of children on the move, asylum seekers, and migrants is built upon a layered legal framework spanning national, regional, and international levels.
At the national level, the Refugees Act (No. 130 of 1998) upholds the right to seek asylum and explicitly prohibits refoulement the forced return of individuals to countries where they face persecution (South African Government, 1998). The Immigration Act (No. 13 of 2002) governs the entry, stay, and deportation of non-nationals, while the Children’s Act (No. 38 of 2005) and the South African Constitution ensure that every child’s best interests remain paramount, guaranteeing access to healthcare, education, and protection regardless of nationality or legal status (Government, Children's Act 38 of 2005, 2010 ).
At the regional level, the Southern African Development Community (SADC) Protocol on the Facilitation of Movement of Persons promotes cross-border cooperation and humane migration management, though its implementation remains inconsistent across member states. Internationally, South Africa is bound by the 1951 Refugee Convention, its 1967 Protocol, and the Convention on the Rights of the Child (CRC) all reinforcing non-discrimination and protection for every child (Nations, 1989).
However, significant gaps persist. South Africa has yet to ratify the 1954 and 1961 Statelessness Conventions, leaving children born to undocumented parents at risk of statelessness without citizenship, recognition, or legal safeguards.
Together, these instruments form a solid foundation for protecting migrant and asylum-seeking children. Yet, enforcement challenges from arbitrary detention to limited access to documentation and services continue to undermine the full realization of these rights.
Human Stories from the Journey
Beyond the legal texts are the human lives they are meant to protect. Since 2019, Médecins Sans Frontières (MSF) has gathered hundreds of personal testimonies from migrants traveling to and within South Africa through its Tshwane and Beitbridge projects.
South African artist Balekane Legoabe brings these narratives to life through evocative illustrations that capture the emotional and physical toll of displacement (MSF, n.d.).
Stories such as “I Am Burning” recount a woman’s ordeal with extreme heat and sexual exploitation on her way to South Africa. “Shoes and Pills” tells of a man who lost both his livelihood and critical HIV medication while in detention. “Come Tomorrow” portrays a parent’s struggle with language barriers and neglect in healthcare, while “I Am Meat” exposes the dehumanization of a teenager crossing borders (MSF, n.d.).
Detention centres like Lindela Repatriation Centre are repeatedly cited for failing to meet basic humanitarian standards denying adequate medical care, sanitation, and dignity. These firsthand accounts, documented and visualized through MSF’s work, highlight the stark dissonance between the protections guaranteed by law and the realities migrants face daily.
Navigating Hostility: Congolese Migrants’ Experience
Research by Dostin Mulopo Lakika (2024) sheds further light on the precarious position of migrants navigating South Africa’s restrictive and often discriminatory immigration system. His study reveals how bureaucratic obstacles from short-term permits and corruption within the Department of Home Affairs to limited asylum services trap many Congolese refugees and migrants in legal limbo (Lakika, 2024).
Facing the risk of criminalization, some resort to informal survival strategies: forging documents, working in unregistered sectors, trading informally, or relying on frappeurs (smugglers) to cross borders. These strategies demonstrate resilience and agency, yet they also heighten vulnerability, reinforce stereotypes of “illegality,” and expose migrants to exploitation and police abuse (Lakika, 2024).
Lakika’s findings underscore how xenophobia, restrictive laws, and state corruption intersect to perpetuate marginalization. Ironically, by over-policing and under-supporting migrants, South Africa’s system often creates the very illegality it seeks to prevent turning survival itself into a criminal act.
Bridging the Divide: From Law to Humanity
Across these layers policy, art, and lived experience a single truth emerges legal protection alone is not enough. While South Africa’s constitutional and international commitments establish a robust framework, their promise often falters in practice.
Bridging this gap requires more than reforming policy; it demands centering human dignity, empathy, and inclusion in every aspect of migration governance. Art, testimony, and research remind us that behind every regulation lies a life in motion a child seeking safety, a parent searching for hope, a community rebuilding belonging.
If the law is the foundation, then storytelling, advocacy, and compassion must be its living walls ensuring that protection on paper translates into protection in reality.
Photo by Kameron Kincade on Unsplash
References
Government, S. A. ( 2002, May 30 ). Immigration Act (No. 13 of 2002). Retrieved from Go.za: https://www.gov.za/sites/default/files/gcis_document/201409/a13-020.pdf
Government, S. A. (2010, Apr 1 ). Children's Act 38 of 2005. Retrieved from South African Government: https://www.gov.za/documents/childrens-act
MSF. (n.d.). “Try being in my mind for 20 seconds” – stories from migrant journeys. Retrieved from MSF: https://www.msf.org.za/MigrantTestimonies
Nations, U. (1989, November 20 ). Convention on the Rights of the Child. Retrieved from United Nations: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
SADC. (2005, Aug 18). Protocol on Facilitation of Movement of Persons. Retrieved from Southern African Development Community: https://www.sadc.int/sites/default/files/2021-11/Protocol_on_Facilitation_of_Movement_of_Persons2005.pdf
South African Government. (1998, November 20). Refugees Act (No. 130 of 1998). Retrieved from Gov.za: https://www.gov.za/sites/default/files/gcis_document/201409/a130-980.pdf
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