March 1, 2007
Police, immigration officials, and military border patrols in South Africa often seriously abuse undocumented migrants when they arrest them. Undocumented migrants awaiting deportation are locked up with criminal suspects or even convicts, while migrant children are often held alongside adults.
Georgette Gagnon, deputy Africa director

South African officials involved in the arrest and deportation of undocumented migrant workers often assault and extort money from them, and commercial farmers employing them routinely violate their basic labor rights, Human Rights Watch said in a report released today.

The 115-page report, "‘Keep Your Head Down’: Unprotected Migrants in South Africa," documents how state officials arrest, detain and deport undocumented foreign migrants, particularly those from Zimbabwe and Mozambique, in ways that contravene South Africa’s immigration law. The report also details how commercial farmers ignore basic employment law protections even when they employ documented foreign migrants and South Africans.

“Police, immigration officials, and military border patrols in South Africa often seriously abuse undocumented migrants when they arrest them,” said Georgette Gagnon, deputy Africa director at Human Rights Watch. “Undocumented migrants awaiting deportation are locked up with criminal suspects or even convicts, while migrant children are often held alongside adults.”

These abuses by officials violate South Africa’s immigration law as well as the country’s obligations under the International Covenant on Civil and Political Rights, which it ratified in 1998.

Due to deteriorating political and economic conditions at home, as many as 3 million Zimbabweans are in South Africa seeking work and asylum. The South African government’s visa requirements for Zimbabweans, coupled with the Zimbabwean government’s lack of capacity to issue passports, make Zimbabweans particularly likely to be undocumented and thus vulnerable to arrest, detention, and deportation in South Africa.

As a result of the increase in the number of Zimbabwean deportees in recent years and the decline in the number of Mozambican deportees, Zimbabweans now surpass Mozambicans as the largest group of deportees from South Africa. In the last seven months of 2006 alone, the International Organization for Migration said that 80,000 Zimbabweans were deported compared to 97,000 for the whole of 2005.

Zimbabwean migrants allege that police on deportation trains sometimes assault and extort money from them, and have even thrown deportees – who believe they have bought their freedom – off moving trains to their deaths.

Human Rights Watch also found that the South African government has routinely failed to enforce its employment law regarding foreign migrant farm workers and South African workers as well. While export-oriented commercial farmers were more likely to comply with the basic conditions of employment law for farm workers, other farmers frequently violate the law.

“Small-scale farmers contravene the immigration law by hiring undocumented migrant workers and also fail to pay them the legal minimum wage,” said Gagnon. “Large-scale farmers often violate the employment law by making unlawful deductions from workers’ wages for housing.”

The report also identifies ways in which South Africa’s immigration and employment laws do not provide adequate legal protection for migrants. For example, the immigration law does not permit undocumented workers awaiting deportation to collect their unpaid wages and personal belongings. Also, foreign migrants are legally entitled to obtain workers’ compensation, but in practice they face obstacles in receiving these funds because it is government policy to pay compensation into bank accounts which are almost impossible for foreign migrants to open.

Human Rights Watch called on the South African government to enforce and, where necessary, amend its laws to ensure that foreign nationals are able to realize their rights as protected by South Africa’s constitution.

“The government should ensure that its officials comply with procedures for arrest, detention and deportation set out in the immigration law,” said Gagnon. “It should also introduce a system for undocumented migrants to report abuses, and it should investigate, prosecute and discipline officials who violate the law.”

Human Rights Watch also urged the South African government to enforce its employment laws by filling vacancies for labor inspectors, introducing mechanisms to enable workers to directly report employers who do not meet labor standards, and embarking on a mass public information campaign to educate farm workers and employers about farm workers’ rights and the penalties for committing abuses.