Investment law and South Africa’s duty to combat xenophobic attacks on migrant-owned spaza shops

ABSTRACT In recent years there have been a growing number of attacks on foreign-owned shops in South Africa. Shop owners report a lack of police action in protecting their property from looting during these attacks. This article explores the extent to which investment law, both international and domestic, imposes an obligation on the state to protect foreign-owned property from such looting. The article specifically engages with criticism levelled at South Africa’s Protection of Investment Act and argues that some scholars have misinterpreted the extent of the physical security obligation in the act. The article also reflects on the trend whereby investment tribunals increasingly consider the state’s available resources and the context in which the attack occurred in determining a potential breach of investment law. It argues that the international community’s condemnation of xenophobia provides an important context for reviewing the state’s obligation to protect foreign-owned spaza shops from such attacks.