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The Legal Framework

The Constitution of the Republic of South Africa, the Immigration Act 2002, and the Sectoral Determination 13: Farm Worker Sector (or basic conditions of employment law for farm workers) provide, for the most part, an adequate legal framework for protecting farm workers’ rights.   Moreover, the legal framework for farm workers is consistent with the government of South Africa’s obligations under those international conventions it has ratified—the International Covenant  on Civil and Political Rights (ICCPR), ⁸³ the African Charter for Human and Peoples’ Rights (ACHPR),⁸⁴ and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). ⁸⁵   

The most notable legal gap in the immigration and labor laws affecting foreign migrants arises with respect to the protection of undocumented workers from exploitation. For example, should an employer hire undocumented migrant workers there are no means to ensure that employers will pay the prescribed minimum wage to undocumented migrants, pay them for work performed, or cover them for work-related injuries.  If undocumented migrant workers are unable to enforce basic rights arising from their employee status and work that they have performed, then unscrupulous employers may deliberately avoid compliance with South African law to their own advantage, with impunity.

The following discussion of the legal framework highlights key provisions for foreign migrants in the constitution, immigration law, and the basic conditions of employment law for farm workers.   We also draw attention to differential rights for citizens and non-South African citizens in the constitution and labor laws, and examine the protections in international conventions which the Government of South Africa has ratified, as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR), which it has signed but not ratified. ⁸⁶   We also point to constitutional changes that would be necessary should the government of South Africa ratify the ICESCR.  

The constitution and the government of South Africa’s international obligations

The South African constitution of 1996 came into force in February 1997.  It is the supreme law of the country.⁸⁷  According to the constitution, “[the] Bill of Rights is the cornerstone of democracy in South Africa.  It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”⁸⁸  The Bill of Rights entrenches the rights of “everyone” in South Africa, inter alia, to equality before the law, human dignity, personal freedom and security, privacy, due process of law, freedom of expression and association, fair labor practices, adequate housing, health care, sufficient food and water, and social security.⁸⁹  With respect to the right to have access to adequate housing and health care, food, water, and social security, the Bill of Rights requires the state to “take reasonable legislative and other measures, within its available resources, to achieve the[ir] progressive realization…”⁹⁰  The Bill of Rights prohibits slavery, servitude, or forced labor,⁹¹ and the deprivation of property (which is not limited to land) except in terms of law of general application.⁹²   

Many rights are subject to limitations in the Bill of Rights.  The Bill of Rights expressly limits specific rights to South African citizens: the right to vote, to form a political party, to stand for public office, to obtain a passport, to enter into the country, to freely choose a trade, occupation or profession, and to benefit from state measures to foster conditions that enable access to land.⁹³    The rights in the Bill of Rights may be further limited but “only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society” and “taking into account all relevant factors….”⁹⁴  The extent to which the constitutional provisions mean that non-South African citizens are also entitled to enjoy the rights such as access to adequate housing, health care, food, water, and social security is yet to be adjudicated by the Constitutional Court, and is therefore an area of unsettled law.   For example, the court ruled in 2004 that the provisions of the Social Assistance Act, 1992 (No.59 of 1992) that reserved social assistance benefits for only South African citizens were unconstitutional and had to be extended to permanent residents but not to “illegal foreigners” and temporary residents.⁹⁵  The Social Assistance Act, 2004 (No.13 of 2004) reflects the Constitutional Court’s ruling.

International law and the rights of foreign nationals

Under the constitution, international law must be considered in the interpretation of the Bill of Rights and other national legislation.⁹⁶   As indicated above, South Africa has ratified the ICCPR, acceded to the ACHPR, and ratified the ICERD.  South Africa has signed but not yet ratified the ICESCR.  South Africa has not signed the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers’ Convention). ⁹⁷

Most rights provided for in the ICCPR apply to everyone, regardless of immigration status.  For example, the ICCPR prohibits the use of torture or cruel, inhuman or degrading treatment or punishment,⁹⁸ and slavery, servitude, and or forced or compulsory labor.⁹⁹  It also provides for the right of everyone to liberty and security of person and prohibits arbitrary arrest or detention;¹⁰⁰ requires all persons deprived of their liberty to be treated with humanity and respect for human dignity; and further specifies the segregation of accused and convicted persons and of juveniles from adults.¹⁰¹ 

The ICCPR reserves a few specific rights for citizens.  Only citizens have the right to vote, to have access on general terms of equality to public service, and to take part in public affairs.¹⁰²  The ICCPR also makes a distinction between the rights of lawful and unlawful “aliens.”¹⁰³  In particular, only legal residents, like citizens, have the right to liberty of movement and freedom to choose their residence, subject to specific restrictions, including that any restrictions be provided by law.¹⁰⁴  The ICCPR also regulates the procedure for the expulsion of a non-citizen legally within the state.  A decision to expel a foreigner legally in a country must be in accordance with law.  Foreigners legally in the state can only be expelled on the basis of an individual decision taken relating to their expulsion following due process, including the right to submit reasons against their expulsion, to have an opportunity to appeal against expulsion and to have a review by a competent authority.¹⁰⁵ 

Much like the ICCPR, although the ACHPR in the main guarantees everyone—regardless of citizenship or immigration status—fundamental rights, certain rights apply only to citizens and lawfully resident non-nationals.  Hence, article 12 stipulates that a non-national legally admitted to a country may only be expelled on the basis of a decision taken in accordance with the law, and prohibits mass expulsions of non-nationals.  Article 13(1) and (2) accords only citizens the right to participate freely in the government of their country and the right of equal access to the public service of their country.

The ICERD prohibits racial discrimination, defining it as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”¹⁰⁶ 

States party to the ICERD may differentiate between citizens and non-citizens, provided legal provisions do not discriminate against any particular nationality.¹⁰⁷  States party may also adopt special measures to promote the advancement of certain racial or ethnic groups or individuals to ensure such groups or individuals the equal enjoyment or exercise of human rights and fundamental freedoms. Such measures will not be considered discrimination provided that they do not lead to the maintenance of separate rights for different racial groups and provided that they are not continued after their objectives have been achieved.¹⁰⁸  

The ICERD imposes on states party the obligation to condemn racial discrimination and undertake to pursue “by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.”¹⁰⁹  States party must also guarantee the right of everyone to equality before the law, notably in the enjoyment of the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution, as well as political, civil, economic, social, and cultural rights.¹¹⁰

In 2004 the Committee on the Elimination of Racial Discrimination, established under the provisions of the ICERD, adopted General Recommendation No.30, which deals specifically with discrimination against non-citizens.¹¹¹   General Recommendation No.30 states that differential treatment based on citizenship or immigration status “will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”¹¹²  Other provisions address protection against hate speech and racial violence, access to citizenship, administration of justice, expulsion and deportation, and economic, social, and cultural rights. 

For example, states party must take steps to address xenophobic attitudes and behavior toward non-citizens, and take firm action to counter any tendency to target, stigmatize, stereotype, or profile, on the basis of race, color, descent, and national or ethnic origins, members of “non-citizen” population groups, especially by politicians, officials, educators, and the media, and in society at large.¹¹³ 

With respect to ensuring that non-citizens enjoy equal protection and recognition before the law, General Recommendation No. 30 requires that states party “combat ill-treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights” and “ensure that claims of racial discrimination brought by non-citizens are investigated thoroughly and that claims made against officials, notably those concerning discriminatory or racist behavior, are subject to independent and effective scrutiny.”¹¹⁴

International legal standards on rights at work for migrant workers

The ICESCR recognizes a defined set of social, economic, and cultural rights, which states undertake “individually and through international assistance and co-operation”  and to the maximum of their available resources, to realize progressively.¹¹⁵ In addition to the progressive realization, and a dependency on available resources, the ICESCR also permits developing countries explicit, but limited, discretion as to the extension of economic rights to foreign nationals.  Article 2(3) says, “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.”  If South Africa were to ratify this treaty, the economic rights provided for in the Covenant would therefore not automatically be extended to foreign migrants.  

There is considerable overlap between the economic rights contained in the ICESCR and the economic rights provided for in the Constitution of the Republic of South Africa, which is particularly relevant in light of the imperative that international law inform the scope of the constitutional provisions.   Article 7 of the ICESCR, which recognizes “the right of everyone to the enjoyment of just and favourable conditions of work,” is reflected in the constitution’s guarantee of fair labor practices (section 23).   Article 7 explicitly states that such conditions must ensure “(a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind…; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted…; [and] (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.”¹¹⁶ The ICESCR also requires that  working mothers during a reasonable period before or after childbirth should be accorded paid leave or leave with adequate social security benefits.¹¹⁷  Article 7 of the ICESCR also recognizes the right of everyone to social security, including social insurance¹¹⁸ and adequate housing,¹¹⁹ and in these respects is akin to section 27 of the Constitution of South Africa.

However, the ICESCR would also impose new obligations on the government of South Africa with respect to the protection of economic rights.  The ICESCR recognizes the right of everyone to an adequate standard of living and, importantly, the continuous improvement of living conditions.  As with many other economic rights, states party are required to take “appropriate steps” to ensure the progressive realization of this right.¹²⁰   While the Constitution of the Republic of South Africa grants everyone the right to a basic education and access to health care services, the ICESCR recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” and to compulsory education free of charge.¹²¹  

Regarding non-citizens’ rights at work, the Committee on the Elimination of Racial Discrimination’s General Recommendation No. 30 states that once an employment relationship has been initiated and until it is terminated, all individuals, whether they have work permits or not, are entitled to the enjoyment of labor and employment rights, including freedom of assembly and association.¹²² Importantly, as a state party to the ICERD, the government of South Africa therefore has an obligation to ensure that, at minimum, employers must pay the prescribed minimum wages and incur responsibility for work-related injuries of even undocumented workers, including those whom the government seeks to deport.

The ACHPR recognizes the inextricable link between economic, social, and cultural rights and civil and political rights in its preamble.  Article 15 of the ACHPR provides that “every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.”¹²³ In December 2004 the African Commission on Human and Peoples’ Rights¹²⁴ adopted a Resolution on Economic, Social and Cultural Rights in Africa.¹²⁵ The resolution incorporated the Declaration of the Pretoria Seminar on Economic, Social and Cultural Rights in Africa, which articulates the scope of several of the articles of the ACHPR, including article 15.¹²⁶ The adopted declaration sets out that the right to work in article 15 of the ACHPR entails among other things:

• Fair remuneration, a minimum living wage for labor, and equal remuneration for work of equal value.
• Equitable and satisfactory conditions of work, including effective and accessible remedies for workplace-related injuries, hazards and accidents;
• Prohibition against forced labor and economic exploitation of children, and other vulnerable persons.
• The right to rest and leisure, including reasonable limitation of working hours, periodic holidays with pay and remuneration for public holidays.¹²⁷

South Africa is also a member of the International Labour Organization (ILO), the leading international agency setting standards on both the right to work and rights at work.  As a member of the ILO, South Africa has obligations to comply with the organization’s aims regarding the provision of “decent work” and has a duty to comply with the ILO Declaration on Fundamental Principles and Rights at Work (ILO Declaration).¹²⁸ The Declaration notes that the ILO should “give special attention to the problems of persons with special social needs, particularly the unemployed and migrant workers,” and lists the elimination of discrimination in respect of employment and occupation as one of the “fundamental rights,” which all ILO members have an obligation to protect. 

The Migrant Workers’ Convention, which South Africa has not signed, provides for the protection of certain rights for all migrants, both documented and undocumented, and of other rights for only documented migrants.  Among protections for undocumented workers that are not explicitly provided for in other conventions which South Africa has ratified, article 22(6) requires that deportees “have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities.”  Article 32 stipulates that when migrant workers and members of their families’ stay in the host country terminates, they must have “the right to transfer their earnings and savings and, in accordance with the applicable legislation of the States concerned, their personal effects and belongings.”

The Immigration Act

The Aliens Control Act, 1991, amended in 1996, encouraged and governed permanent immigration for Europeans.  African migrants from the Southern Africa region seeking legal access to South Africa were subjected to a dual system of control known as the “two gates policy.”  The normal immigration rules and regulations for Europeans in the Aliens Control Act of 1991 provided one “gate”; specific exemptions from the act for non-South African workers in the case of bilateral government conventions or temporary employment schemes provided a second “gate.”  The act did not prescribe or regulate such schemes.  It merely gave discretion to the minister of home affairs to exempt particular employers and “special recruitment schemes.”  These exemptions were designed for the mining industry and white commercial farmers, and allowed them the right to employ non-South Africans under separate terms and conditions than those prescribed by the act.¹²⁹  The Aliens Control Act was replaced by the Immigration Act, 2002, which became effective in 2003.

The 2002 immigration law was developed by then-Minister of Home Affairs Mangosuthu Buthelezi and his advisors, who were not members of the governing African National Congress party.¹³⁰  The 2002 act and the accompanying regulations were largely inconsistent with stated government policy to remove obstacles to the entry of skilled migrants.  Except for large employers, the 2002 act together with the regulations mostly made the process of entry more complicated and time-consuming.¹³¹ Following a 2004 directive from President Thabo Mbeki to the Ministry of Home Affairs to bring the Immigration Act into line with national policy objectives, the Immigration Amendment Act was introduced and became fully operational with the publication of new Immigration Regulations in July 2005.¹³²

The Immigration Act, 2002 (No. 13 of 2002) and the Immigration Amendment Act, 2004 (No. 19 of 2004) empower the minister of home affairs to delegate, subject to the conditions that s/he may deem necessary, his powers (with a few specified exceptions) in terms of the act to other officers or employees in the Public Service.¹³³   The Department of Home Affairs, owing to a shortage of personnel, has delegated powers to the SAPS to conduct searches, arrests, and deportations, and sometimes to the South African National Defence Force (SANDF) to make arrests.¹³⁴

The Immigration Act, 2002 generally promotes temporary rather than permanent residence and does not encourage family immigration or unification.¹³⁵  The legislation provides for 13 types of temporary residence permit and five types of work permit.¹³⁶  Generally, the main consideration in issuing work permits is whether the employer can demonstrate that a South African citizen or permanent resident is not available for the position.¹³⁷  The employer is also required to demonstrate that the terms and conditions of employment will not be inferior to those applicable for citizens.¹³⁸  The Immigration Act ends employers’ access to special exemptions for the recruitment of foreign workers based on ministerial approval, but preserves existing treaties with governments in the region.¹³⁹ 

Farmers who seek to employ foreigners apply to the DHA for a corporate permit, a new type of permit.  The DHA determines the maximum number of foreigners the corporate permit applicant may hire.¹⁴⁰  Farmers must submit proof of the need to employ the requested number of foreigners and provide a job description and proposed remuneration for each foreigner.¹⁴¹ With a flat fee of R1,520 (US$218.08) irrespective of the number of corporate workers hired, the corporate permit is cheap; individual work permits cost R1,520 each.¹⁴²  The corporate permit holder must ensure that the passport (or the emergency travel document, ETD) of the foreigner is valid at all times, that the foreigner is employed only in the specific position for which the permit has been issued, and that the foreign worker departs from South Africa upon completion of the job.¹⁴³

In both Limpopo and Mpumalanga, most farmers with substantial foreign labor forces have applied for corporate permits to legalize foreigners who are already in the country.   This is technically unlawful but it does facilitate the regularization of foreigners who are in the country in violation of the immigration law.  The Mozambique Labor Department’s sub-delegate estimated that only 20 percent of the farmers who come to his Nelspruit office seek to recruit Mozambicans from Mozambique unique the technically correct legal process.¹⁴⁴  This official supports the process of documenting workers even if they are already in the country.  He believes he was instrumental in persuading the DHA not to deport some 600 undocumented Mozambican workers on tomato producer ZZ2, in Limpopo province.  Instead, in December 2005 the DHA, the South African Department of Labour, and his own office with the assistance of Agencia Algos documented the workers.  He described the process by which the status of the workers was regularized, albeit not as set out in the law: the DHA issued the company with a corporate permit, after the Department of Labour had accepted that South African workers were not available for the jobs; the Mozambican sub-delegate visited the farm to issue travel documents (for which the workers pay);  Agencia Algos provided service contracts (for which the employer pays) after the DHA had issued each worker with corporate worker authorization certificates;  then the worker crossed the border into Mozambique to obtain a border stamp in the service contract. ¹⁴⁵  

Another new permit provided for in the Immigration Act is the asylum transit permit.  The director-general of the DHA may issue a 14-day asylum transit permit to a person who at a port of entry claims to be an asylum seeker.  Within 14 days the asylum seeker must report to one of the country’s five Refugee Reception Offices.¹⁴⁶   At these offices, all people have the right to apply for asylum and to have their application fairly considered in terms of the Refugee Act, 1998.

The Immigration Act defines a “foreigner” as an individual who is not a citizen and an “illegal foreigner” as a foreigner who is in South Africa and in contravention of the Act.¹⁴⁷  Section 34 of the Immigration Act, as amended by the Immigration Amendment Act, governs the procedures for the arrest, deportation, and detention of “illegal foreigners.”¹⁴⁸  The legislation also forbids employers to hire undocumented foreigners,¹⁴⁹ and makes it an offense, punishable by a fine or imprisonment, to hire or aid “illegal foreigners.”¹⁵⁰ 

An immigration official requires a warrant to enter a private dwelling to search or make inquiries.¹⁵¹  Farms are ordinarily treated as private dwellings.  In early 2002 the minister of safety and security and Agri South Africa (Agri SA), the largest national farmers’ organization, negotiated an agreement that requires officials in health, labor, agriculture, home affairs, the police, and defense force to give advance notice to farmers before they visit.  Only within 10 kilometers from borders may immigration officials, police, and soldiers visit farms unannounced.  Farmers negotiated this agreement on the grounds that people posing as government officials were attacking farm owners.¹⁵²    According to police and immigration officials, the agreement handicaps them should they wish to visit a farm to investigate whether the farmer is hiring “illegal foreigners.”  Warned of a pending visit by government officials, a farmer hiring undocumented workers will make sure they are nowhere to be seen when the officials visit.¹⁵³ 

Because giving advance warning to farmers is self-defeating, a labor inspector in Nelspruit said labor inspectors did not abide by the agreement: they visited farms unannounced but only concerned themselves with employers who hired “illegal foreigners” if they received complaints of employers’ abuse.¹⁵⁴  A number of farmers—typically large-scale producers—whom Human Rights Watch interviewed in Mpumalanga reported experiencing blitz inspections.¹⁵⁵ 

Labor laws

The legal environment for farm workers improved substantially, beginning in 1993.¹⁵⁶  That year, the government extended the right to organize and the basic conditions of employment law to the agricultural sector.  In December 2002 the minister of labour used his power under the Basic Conditions of Employment Act, 1997 (BCE) to set basic conditions for the farm sector, including the introduction of a minimum wage.¹⁵⁷  The 2002 Sectoral Determination 8:  Farm Worker Sector set minimum wages for March 2003 to February 2004.¹⁵⁸  Different minimum wages were set for primarily urban (Area A) and rural (Area B) municipalities.

Sectoral determinations are made for sectors where workers lack the organizational power to ensure adequate protection of their rights through negotiation with employers.   The Employment Conditions Commission, which is appointed by the minister of labour and which is composed of a representative of organized labor and organized business, must advise the minister on the impact of a sectoral determination on various matters, including the ability of employers to carry on their business successfully; the operation of small, medium or micro-enterprises and new enterprises; the cost of living; the alleviation of poverty; and the likely impact of any proposed condition of employment on current employment or the creation of employment.¹⁵⁹  

On February 17, 2006, the minister of labour announced the new Sectoral Determination for the Farm Worker Sector.¹⁶⁰  For predominantly rural areas, the minimum wage was raised from R785.79 (US$112.74) per month or R4.03 (US$0.58) per hour to R885 (US$126.97) per month or R4.54 per hour (US$0.65) to apply between March 1, 2006, and February 28, 2007.¹⁶¹  The 2006 Sectoral Determination also set minimum wage increases for 2007 and 2008 respectively, and made a few other changes, including the provision to have only one minimum wage level in the agricultural sector from March 1, 2008.

The minimum wage for farm workers is among the lowest, if not the lowest, in the formal employment sector.   In 2006 the prescribed minimum wage for domestic servants in rural municipalities was just over R5.00 (US$0.72) per hour (slightly higher than for farm workers in rural areas) and just under R620 per month (lower than for rural-based farm workers).¹⁶²  The estimated average monthly earnings at current prices (and including bonuses and overtime payments) for all formal non-agricultural industries in February 2006 was over R7,000 (US$1,044.78).¹⁶³  

Foreign farm workers benefit from some, but not all, the improvements in South African labor law.  In January 2003, Minister of Labour Membathisi Mdladlana stated,  “South African labour legislation—including the recently launched Sectoral Determination for the Agricultural Sector—applies to all people working in South Africa, irrespective of whether they are South African nationals or not.”¹⁶⁴  As undocumented workers are also “people working in South Africa”, the laws should also protect their rights so that undocumented workers should receive the minimum wage and enjoy mandatory time off and compensation for work performed.  This is yet to be tested in the courts.    Likewise, the Compensation for Occupational Injuries and Diseases Act, 1993 (No. 130 of 1993, amended by No.61 of 1997), which governs worker compensation and medical payments for work-related injuries and diseases, does not distinguish between South African citizens and foreign workers.  With few exceptions that are not related to citizenship, all employers are required to contribute to the workers’ compensation fund.  

There is labor legislation that discriminates between foreign and South African workers.   The Unemployment Insurance Act, 2001 (No. 63 of 2001),¹⁶⁵ and its counterpart, the Unemployment Insurance Contributions Act, 2002 (No.4 of 2002),¹⁶⁶ which was amended in 2003, explicitly exclude, among others, foreign workers on contract, including therefore all foreign migrant farm workers who are employed by virtue of their employers having been issued with corporate permits.¹⁶⁷  Neither the farmers nor the foreign contract workers they employ are required to make the otherwise mandatory monthly contributions to the Unemployment Insurance Fund (UIF)—1 percent of full wages paid for employers, and 1 percent of wages received for employees. Foreign farm workers are therefore not eligible for short-term relief that contributors to the UIF are entitled to claim: unemployment benefits, if the employer terminates the services of the contributor or a fixed-term contract ends or the employer becomes insolvent;  illness benefits for periods of illness lasting up to 14 days; maternity benefits and maternity leave for a maximum period of 17.32 weeks; dependants (death) benefits for the surviving spouse or life partner, or under certain conditions, for any dependant child under 25 years of age. 

At least two other labor laws explicitly differentiate between citizens and non-citizens.  The Employment Equity Act, 1998 (No.55 of 1998) seeks to eliminate unfair discrimination in the workplace and to implement affirmative action measures to redress the disadvantages in employment experienced by “designated groups.”  Designated groups were defined to mean black people (i.e. Africans, Coloreds, and Indians), women, and people with disabilities.  In August 2006 an amendment to the Employment Equity Regulations added the qualification that designated groups had to meet citizenship requirements.¹⁶⁸  The Skills Development Act, 1998 and the associated skills development levy on employers apply only to the South African labor force.

Mechanisms of enforcement and remedies

Labor inspectors are responsible for monitoring and enforcing compliance with employment laws in all work places and not only farms.  Employment laws include the Unemployment Insurance Act, the Skills Development Act, the Employment Equity Act, the Occupational Health and Safety Act, and the Compensation for Occupational Injuries and Diseases Act.¹⁶⁹  The minister of labour is responsible for appointing or designating and certifying labor inspectors from persons in the public service.¹⁷⁰   Labor inspectors may promote, monitor, and enforce compliance with an employment law by advising employees and employers of their rights and obligations in terms of an employment law, conducting inspections, investigating complaints, and by securing undertakings or issuing compliance orders.¹⁷¹   To monitor or enforce compliance with an employment law, a labor inspector has specific powers that include requiring a person to disclose information or provide records or documents relating to an employment law.¹⁷² 

There were 1,012 inspectors in March 2006, and 145 unfilled positions for inspectors—a vacancy rate of 12.5 percent for inspector posts.¹⁷³   Though there are 200 more labor inspectors than in 2003,¹⁷⁴ the Department of Labour’s director-general acknowledged in the annual report for 2005-06 the need “to strengthen the implementation, enforcement and monitoring mechanisms of our legislation.”¹⁷⁵

An employer may challenge a compliance order by making representations in writing to the director-general of labour, and may appeal to the Labour Court against an order of the director-general.¹⁷⁶   Employees’ rights include the right to complain to a trade union representative, a trade union official, or a labor inspector about any alleged failure or refusal by an employer to comply with the BCE Act; to refuse to comply with any instruction that is contrary to the BCE Act or any sectoral determination; and to refuse to consent to any condition of employment that is contrary to the BCE Act or any sectoral determination.¹⁷⁷  Employees or employers may refer any dispute about the interpretation of application of the aforementioned rights of employees to the Commission for Conciliation, Mediation and Arbitration (CCMA) established in terms of section 112 of the Labour Relations Act, 1995. 

The CCMA is an independent government-funded dispute resolution mechanism.¹⁷⁸   Its compulsory statutory functions include the conciliation of workplace disputes and the arbitration of certain categories of disputes that remain unresolved after conciliation.  Conciliation must be conducted within the statutory 30-day period and arbitration awards rendered within the statutory 14 days.  If asked, the commission may provide employers, employees, and unions with advice or training relating to the primary objectives of the Labour Relations Act.  The commission’s governing body is appointed by the minister of labour and is composed of representatives of organized labor, organized business, and the state.  The governing body appoints commissioners who may be part-time or full-time and who have fixed terms.  

The CCMA compiles and publishes information and statistics about its activities, as mandated in the Labour Relations Act.¹⁷⁹   The CCMA had an average of nearly 500 disputes per working day referred to it between April 2005 and March 2006.¹⁸⁰  Unfair dismissal disputes accounted for the largest percentage of issues (about 80 percent) referred to the CCMA.  Unfair labor practices, the next largest percentage of disputes, comprised over 6 percent of referrals to the CCMA.  Referrals by sector remained relatively consistent throughout the 2005 to 2006 period.  In particular, the agricultural sector and the food and beverage manufacture sectors each accounted for about 4 percent of referrals—the lowest percentage of referrals by sector.   In the arbitration awards rendered by the CCMA, 63 percent were in favor of the employee party and 35 percent in favor of the employer party.  The overwhelming number of conciliation cases and arbitration awards were completed within the statutory timeframes.