ConclusionDocumented and undocumented migrants from Zimbabwe and Mozambique are vulnerable to having their human rights violated while working as laborers on farms in South Africa. There is ambiguity around the protection offered under South African law to certain of their rights. Rights such as to liberty, security, and appropriate conditions of detention in the event that they are detained, are protected under the constitution and international law but are subject to violation. Their right to fair labor practices as protected under the South African constitution is regularly infringed through failure of relevant actors to comply with immigration and employment laws and also deficiencies in these laws. Migrant farm workers also face barriers in accessing adequate housing. Dismantling these barriers will require the adoption of specific housing policies designed to address the housing needs of migrant and South African farm laborers, and the current unsettled state of the law may lead to further rights-based litigation to help resolve the issue. Police and immigration officials frequently violate the procedures for the arrest, detention, and deportation of foreign migrants that are set out in the Immigration Act and in violation of South Africa’s obligations under international human rights law. In the agricultural sector, chiefly small farmers and Trust land farmers are most apt to operate outside of the legal framework for the employment of migrants, and do not obtain the relevant corporate permits to authorize the hiring of foreign workers. Failure to comply with prescribed basic conditions of employment for farm workers is commonplace and leads to worker exploitation. Violations include not paying the minimum wage, overtime, sick leave, and annual leave, and making unlawful deductions from workers’ wages. Farmers who produce for export are least likely to violate the basic conditions of employment. Among large-scale farmers more generally, many comply with the minimum wage but do not pay for overtime, sick leave, or annual leave. Small farmers and Trust land farmers are unlikely to pay minimum wages, overtime, or leave time. South African employers, workers, and private security officials use violence against foreign workers, documented and undocumented, and South African workers. With respect to the right to workers’ compensation, it is rare for employers to submit claims for work-related injuries for South Africans or foreign migrants, and foreign migrants seem to suffer de facto exclusion from workers’ compensation. Existing legislation discourages farmers from investing in farm workers’ housing, and the government has no housing policy for farm workers, whether South African or foreign. The government of South Africa must take steps to ensure that its immigration and employment laws are being enforced, and amend the laws where necessary. Measures such as creating a hotline for foreign migrants to report human rights abuses by employers may complement a role for nongovernmental organizations in helping labor inspectors to monitor compliance with employment law. De facto impediments to foreign migrants receiving workers’ compensation, such as access to bank accounts, should be removed. The government should acknowledge the problems facing farm workers—both foreign migrants and nationals—in accessing adequate housing and should devise a housing policy that will enable it to progressively realize the right of access to adequate housing. |