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The Immigration Act: Violations and Legal Gaps Resulting in Human Rights Abuses

Our research in Limpopo and Mpumalanga found many employers who unlawfully hired undocumented foreign workers.  We also found that police and immigration officials violate the procedures for the arrest, detention, and deportation of foreigners residing in the country illegally.  Other research has documented similar violations in the treatment of foreigners in South African, ¹⁸¹ and taken in its entirety this body of research suggests that the violations committed by police and immigration officials are widespread rather than isolated, individualized incidents.  We identify these violations and also deficiencies in the immigration law, and where applicable, their consequences for the human rights of foreign migrants. 

Employers’ failure to document foreign farm workers

It is, as previously noted, a violation of the Immigration Act, and an offense, for an employer to hire a foreigner whose immigration status is illegal.  Our findings suggest that the use of undocumented farm workers is a diminishing problem, largely confined to small and less financially successful farmers (most farmers who produce on a large scale for export or for the domestic market use only documented workers).  Undocumented workers, as we discuss later, are often more vulnerable to human rights abuses, including the denial of the right to fair conditions of work. 

Most of the undocumented workers whom Human Rights Watch interviewed worked either for Trust land farmers who farm 10 to 15 hectares and hire no more than 10 or 12 workers, or for farmers on small privately-owned farms.   None of the undocumented farm workers whom we interviewed, as discussed later, get paid the minimum wage.¹⁸² 

In Limpopo, Human Rights Watch visited a 15-hectare Trust land farm in the former Venda homeland.  The farmer told us how he had paid for a corporate permit for his Zimbabwean workers but one by one they had deserted.  The farmer believed they had left because he could not pay them the minimum and he could only provide them with shacks.¹⁸³  The farmer had not applied for a corporate permit for the nine Zimbabweans he was then employing.  They, too, hoped to find better paid work and better accommodation, though they expressed concern that their undocumented status would be a constraint.¹⁸⁴  A 35-year-old Zimbabwean deportee told Human Rights Watch at Beitbridge that he had worked illegally in South Africa for a black farmer.  He was the only worker on the farm in Maguni, near Njelele in Limpopo province.¹⁸⁵ 

In Mpumalanga, Human Rights Watch interviewed many Mozambicans who worked for Trust land farmers in Nkomazi in the former KaNgwane homeland.  A Mozambican woman, a refugee from Magudu in Maputo province, did not get a South African identity document during the amnesty, though her husband did.  Five years ago, after her previous employer, a Trust land farmer died, she took a job with another farmer in Nkomazi.  She and another person are the only two workers, and both are undocumented.  Her undocumented status is the reason why she does not leave in search of a better paid job, as other workers have done.¹⁸⁶

Nkuzi Development Association interviewed two Mozambican women who worked illegally in sugarcane fields for Trust land farmers who employed fewer than five workers.¹⁸⁷  A widow who fled Mozambique in 1990 after her husband had been killed by Frelimo soldiers (the Government of Mozambique’s armed forces), and who had her amnesty application rejected, works illegally for a farmer originally from Mozambique.  All seven workers on the farm in Nkomazi are from Mozambique.¹⁸⁸  A Mozambican man, who came to South Africa in 1975, has no legal work documents. At present he is the sole worker on a 12-hectare farm operated by a woman near Mangweni.¹⁸⁹  A Mozambican man who had just been laid off with four of his 11 co-workers, all Mozambicans, had been working without a legal work document for a farmer in Mzinti.  He had not got amnesty because he had been unable to apply within the prescribed time period due to a prolonged illness.¹⁹⁰ 

On privately-owned farms which employed larger work forces than the Trust land farmers, undocumented workers are usually hired as seasonal, casual, or temporary workers.  In law, casual workers are hired per day, temporary workers for less than three months, and seasonal workers for more than three months.  Colloquially, people do not always use these terms as they are defined in labor laws. 

A farm near Hazyview employs Mozambican workers who do not have the right to work legally in South Africa.  On the day that Forced Migration Studies Programme visited the farm there were about 70 workers harvesting string beans in the field.  The workers are employed for two to three weeks.  According to the induna (a Zulu word whose colloquial meaning implies formal authority; in this context it may be translated as “team leader”), “Police come here almost every day, or after 2-3 days.  They talk to the farm owner, there in the house on the hill, and then they come over here to see what is happening.  They never take anyone with them, at least not since I started here 15 years ago.”¹⁹¹  On a banana and avocado farm near Kiepersol there was only one permanent worker and some 20 to 50 temporary workers, most of whom had been working on the farm for five years or more, and only four of whom were Mozambicans.   According to a South African worker on the farm, the Mozambicans “don’t have IDs.  The farm owner doesn’t ask about IDs when he hires people.”¹⁹²  If the farmer does not ask about IDs, it would suggest that he is unconcerned about whether he hires documented or undocumented workers.

In Hoedspruit area, the owners of a farm that has 55 hectares under cultivation and another 250 hectares under grazing, hire 45 permanent staff, all documented, and about as many temporary workers.  The owners admitted to not being concerned if their temporary workers were undocumented. “We don’t check the IDs of temporary workers.  Some are just working for a week, so it is a lot of administration.  It costs a lot of money to make copies (of IDs and contracts) for 40 to 50 temporary workers.  On small farms you are the manager and the mechanic and the human resources person, so you don’t have a lot of time for administration.”¹⁹³

On a farm which employs considerably more than 100 permanent workers, the South African and Mozambican workers said their employer did hire temporary workers without any documents but that they all got the minimum wage.¹⁹⁴  The neighboring farm, which also has a substantial permanent labor force, according to the permanent workers, “had Mozambicans working on the farm without papers but not many.”  The workers said, “The police do come and arrest people.  They last came last month.  They were arrested and they came back.  The police came during the day.”¹⁹⁵

Government officials in Nelspruit expressed the opinion to Human Rights Watch that undocumented foreign workers are now employed in greater numbers in construction than on farms. The Nelspruit police station commander maintained that most of the 50-60 undocumented Mozambicans deported monthly from Nelspruit police station were arrested on construction sites and in towns.¹⁹⁶  The head of the Mpumalanga Immigration Inspectorate in Nelspruit claimed there were more undocumented workers on construction sites than on farms, in part because there had been more public pressure on farm owners to document their workers.¹⁹⁷ 

The Nelspruit labor inspector to whom Forced Migration Studies Programme spoke said, 

We get more complaints from the construction and security sectors than from farming nowadays.  A farmer might want cheaper foreign labour but they can’t get any because he has to go through DHA and us [Department of Labour] and he can’t get Mozambicans [through the corporate permit] unless he pays them minimum wages.… Those Mozambicans who come in illegally are still being misused, but not in large numbers.¹⁹⁸

Officers’ failure to provide written notification of the decision to deport

The Immigration Act requires that foreigners who are in the country unlawfully must be given written notice of the decision to deport them and of their right to appeal the decision to deport them.¹⁹⁹ Also, they must be informed upon arrest or immediately thereafter of their right to appeal or to have their deportation confirmed by a court warrant issued within 48 hours of request.²⁰⁰  These provisions are consistent with international and constitutionally guaranteed rights to due process.   Failure to comply with the protections in the Immigration Act denies individuals their right to due process.

At neither Musina nor Makhado police stations in Limpopo or at Komatipoort police station in Mpumalanga did Human Rights Watch find any evidence that detainees received written notification of the decision to deport them or of their right to appeal a deportation decision.  At Komatipoort, a senior immigration official described the legal procedure as follows:  DHA issues to the police at the holding facility a warrant of detention for foreigners unlawfully in the country; the DHA issues a notification of deportation within 48 hours of arrest to the detainee, giving him or her three options: to appeal the deportation decision, to be deported at the first reasonable opportunity, or to request a court warrant  to confirm that the detention is for the purpose of deportation.  Referring to a Malawian inmate at Komatipoort police station, she said,  “For the Malawian, the 48 hours is up today at 1 p.m.  I need to issue the notification of deportation.”  When Human Rights Watch researchers told her that none of the inmates they had spoken to almost daily for a week in the holding facility at Komatipoort had received a written notification of deportation, she continued,  “I wouldn’t say everybody is going the straight way.  Everyone wants to shorten their jobs.”²⁰¹ 

Killings, assault, and extortion of foreign migrants by state officials

As a party to the ICCPR, ICERD, and the African Charter, South Africa has undertaken to guarantee to all, including foreigners unlawfully in the country, basic human rights including the right to life, to personal security, and to be free from all forms of cruel, inhuman or degrading treatment.²⁰² Although this is reinforced through constitutional protection of the same rights,²⁰³ Human Rights Watch has heard from many “illegal foreigners” and even some state officials of alleged assaults of “illegal foreigners” and extortion of money and other property from them by police, military, and immigration officials. Some of the incidents related include unlawful killings by law enforcement officials who forced foreigners to jump to their deaths from moving trains. Killings, assault and other forms of ill-treatment committed by a state agent—be it a law enforcement officer or other immigration official—is not only a crime, but also a serious human rights violation. Where such incidents are routine and the evidence indicates that officials who engage in such illegal activity enjoy effective impunity and are not held to account for their abuse of power and unlawful use of force, the problem is a systemic one and requires urgent and robust response. 

Even foreigners in South Africa whose immigration status is illegal should also enjoy the protection of the Immigration Act, which makes it an offense for any civil servant to accept “any undue financial or other consideration to perform an act or to exercise his or her discretion in terms of this Act…”²⁰⁴  The Act also requires an immigration official who takes documents “or any other thing” from a suspected “illegal foreigner” to issue a receipt and to return whatever was taken after the purpose of its seizure has been accomplished.²⁰⁵ 

A farmer in Weipe complained to Human Rights Watch of police and military raids at the workers’ compound, mainly at night or early in the morning, during which workers were ill-treated.   He related an incident of a military raid on the compound early one morning. A worker used his cell phone to call him and said, “Come and help.  These people are chasing us at three in the morning.  We have to work tomorrow.”  The farmer commented, “The police want a surprise element.  They are not handling these guys very humanely.  Last week, they’ve been three times.”  He also referred to an incident in which a police officer had torn up the identity document of a South African worker.  The destruction of South African citizens’ identity documents and their arrest on suspicion of being undocumented migrants is reportedly a common problem that arises because police and army officers often rely on arbitrary procedures to identify undocumented foreigners and assume that some individuals with South African identity documents are foreigners using fraudulent documents.²⁰⁶ 

I have two workers—a brother who is a driver and a sister who works in the house.  Last week a group of policemen came to the farm compound and one policeman tore up their ID documents.  They have worked 15 years on the farm—longer than me 

This farmer’s African farm supervisor, a Zimbabwean who has worked on the farm for 13 years, said, “They want permit or passport.  If you argue, they hit.  They are also looking for cigarettes.”²⁰⁸

A 28-year-old Zimbabwean from Mwenezi district, Masvingo, crossed the Limpopo river illegally and was traveling at night in a taxi when soldiers stopped the vehicle at Muswodi.  Before taking the approximately 15 passengers to Muswodi police camp, the soldiers forced the passengers to lie on top of each other in groups of five.

They said we must lie down on the ground.  Five-five [groups of five], one on top of each other.  From 3 to 5 in the morning they made us pile up.  They did not beat me.  But the only thing they did wrong to me was they put a gun on my chest and made me lie on top of it—two people below me, and two people on top of me.  There were so many soldiers.  I don’t know the number.  There were about six to eight.  I told the soldiers but they did not care.  I said my chest is painful.  So I was crying for that time.  The soldiers who put the gun on me are speaking Venda.²⁰⁹ 

This man went with an IOM staff member to report the incident to the South African police.

A 19-year-old Zimbabwean from Mbare, whom we interviewed at Beitbridge, was arrested and beaten by soldiers when he was inside the Limpopo border fence.  Demonstrating being hit on his face, he said, “The soldiers give me some claps.”  Asked why, he replied, “To teach me not to do it [illegally cross the Limpopo] again.”²¹⁰ 

An immigration officer at the DHA Komatipoort office told Human Rights Watch of how a Mozambican girl had been raped in front of a group of Mozambicans who had been arrested by an SANDF border unit and left under the guard of one of its members:  

Four months ago, the SANDF arrested about 30 illegals.  One 40-year-old Mozambican man raped a Mozambican girl of 17 in front of the group of arrested people.  No one said anything.  We made her open a case.  The police said no, give it to the Mozambicans, they will sort it out. The police said the Mozambicans have harsher laws than in SA.  We had to take it to the Mozambican side.  He was charged.²¹¹ 

Human Rights Watch interviewed a young Zimbabwean man at the IOM reception center in Beitbridge who had been deported after living and working illegally in South Africa for eight months.  He contends that police threatened him with violence, stole from him, and sought to extort money from him on different occasions.   When he first came to South Africa, he and a friend from home set up a barber shop on the streets of Johannesburg.  “The municipal police took all our machines.  It was on a Sunday.  It was a very busy day.  They said we could get the machines back if we came and paid R820 [US$117.65].”  

He then got a job as a truck driver, earning R500 (US$71.74) per week.  South African drivers were paid about R700 (US$100.43) per week.  After five months, he and four others were arrested by police at their work place in Parkview.  Recounting his arrest, he dwelled on unnecessarily aggressive behavior of the police and their attempt to extort money:

The real problem is how police treat us.  Before we got to Lindela [detention center], you go to their police station.  They use firearms, shooting in the air or behind you.  Three shots were fired before I was arrested.  I was not running or anything.  I was taken to Parkview police station in Johannesburg.  Police came at 9:30 a.m. on October 5.  [He produced Notification of Rights in Terms of the Constitution (s.35 of Act 108 of 1996) to show his date of arrest.]   I failed to produce a valid passport and valid ID.…  I stayed one night at Parkview police station.  At Parkview police station, the treatment was not so bad but the way they arrested us—gunshots, handcuffs, and they asked us to pay money to release us. R300 [US$43.04] for each person. If I’ve got money, it’s for my mother. 

At Lindela, where he spent five days, he reported that immigration officials who fingerprinted them offered to release them if they could pay R500 (US$71.74).  While being deported, he claimed three people, including one in his coach, had been pushed through the window of the moving train at night by the police. All three men had paid R300 (US$43.04) to the police to release them on the trip.  The police also abused the deportees on the train, forcing them to sleep one on top of the other underneath the bunks.²¹²  

Another young man who had traveled on the same train transporting Zimbabwean deportees from Lindela deplored the way he had been treated by police during his arrest, detention, and deportation.  Police arrested him at his workplace in Pretoria.  When he asked the police to take him home to collect his savings, they beat him.  At Garsfontein police station, Pretoria, the police beat all 15 Zimbabweans and sprayed them with teargas.  On the train to Musina, he said he had to lie under the train seat with handcuffs that chained him to other deportees.  He accused the police of beating them with batons and spraying them with teargas on the train.  According to him, many deportees paid R300 (US$43.04) to the police in exchange for promises to be allowed to jump off the train.  In his train coach alone, he claimed six deportees jumped off the train, three of them to their death.  After people had died, he said, 

Police are laughing at us.  They are saying we are baboons.  If you are continuing to talk, we can spray your mouth.  In your country you have nothing.  You have no food to eat.  Your country Zimbabwe is poor. At Musina, when we depart [disembarked], they took four people and say, “Clean this train (more than 24 trucks), then you can go free.”  But after they’d cleaned the train, they put those people into the gumbakumba [police truck] and said, “Go back to your country. We don’t want to see you in South Africa.”²¹³ 

A 33-year-old Zimbabwean, who was deported on the same train, recounted a similar story of beatings and other abuses by police and extortion by immigration and police officers:

We [referring to his friend who had been deported with him] were coming from work.  We were just looking for some meat.  They started to search us thinking we had guns.  They asked for papers.  We said we had asylum permits.  We could go home [to Thembisa, east of Johannesburg] and get them.  [The Immigration Act requires the arresting officers give foreigners who are suspected of having an illegal immigration status an opportunity to verify their legal status.]  Then they just arrested us.  “Can you give us a chance to get home?” we asked.  Then they asked for money.  R500 [US$71.74] per person, they asked for.  We said we only have R20 [US$2.87] on us.  When we get home, we can give you money.  My wife came a day later [to the police station] and brought money.  They wouldn’t accept it.  At Lindela, when we came in, immigration [officials] are also asking for about R700 [US$100.43] to get out.  Others having money were paying and getting out.  We didn’t have the money up to their figure.  Together we had R200 [US$28.69] from my wife.… 

And on the train coming from Lindela, that’s where the big problem was.   When you get into the train, there’s their term “chufkop,” meaning keep your head down so you won’t know where you are.²¹⁴  If you don’t put your head down, they’ll come and beat you.  Once you put your head down, they start asking who has got money to go free.  If you pay that R500 [US$71.74], they’ll force you to jump out of the window. About three died.  Others were injured.  The train is moving fast.  One of the police was shivering, saying, “Ah, I’ve killed someone.” … [W]e were forced to sleep under the seats.  We complained.  They’ll clap you.  They’ll come and beat you.  They also force you to sleep where you keep your baggage.  In our whole coach there are about 70, and everyone is sleeping under the seat.  The police sit on the seats.  In the morning they said “wake up.”  Then we sat on the seats.²¹⁵ 

We were informed that at least one deportee had accompanied an IOM staff member to report to the South African police the deaths of Zimbabweans who were on the train transporting Zimbabwean deportees who had been at Lindela detention center to Musina police station. 

A newspaper report in March 2006 quoted a Zimbabwean deportee describing a similar type of police abuse on the train from Johannesburg to Musina.  “When deported, people are forced to squat under train benches the whole journey to Musina.  No-one is allowed to raise a head as they fear that people might try to jump from the moving train.  The journey is gruelling, it’s like a torture exercise.”²¹⁶ 

A 24-year-old Zimbabwean who has been selling curios in South Africa since 2003, was arrested in East London by police.  Speaking at the IOM reception center at Beitbridge, he told us he had gone to the beachfront to display his curios, intending to return home to bath and dress properly.  The police told him he had only a tourist visa and not a business visa.  They confiscated his curios, which he estimated to be worth R25,000 (US$3,586.80).  He appealed to the police to let him go home and put on shoes and get a jacket but they refused.  He was kept in Westbank prison for three weeks before being deported.²¹⁷

A 23-year-old Mozambican from Moambo and his 28-year-old friend who is of mixed Mozambican-Tanzanian parentage live on the compound of a farm that is no longer operational.  The compound provides rental accommodation to many who work in the vicinity of Nelspruit.   Both men are in South Africa without passports.  They told us of how police, immigration, and farm security personnel visited the farm in the early hours of the morning, assaulted residents and stole from them, before arresting them.   While the younger man was fortunate to escape assault and theft, the other described how he became a victim during the raid: 

It was two months ago.  Police came around 3 in the morning.  Everyone is sleeping.  They knock one by one on the door.  They ask for passport and ID.  Some open the door, others did not.  They knock me [on my door].  I open the door.  They ask me, “Where’s your passport, where’s your ID?”  I’ve never had any documents.  They said okay.  I tell them I’m from Mozambique. [His father is Mozambican; his mother is Tanzanian.]  They said okay.   They took my kettle, TV, DVD, duvet, and other things from my [South African] girlfriend.  They took our rings.  Even money.  They took R800 belonging to my girlfriend [who was visiting her mother].  It was police, immigration, and security. 

After they took things, we went to the police station [Nelspruit].  I spent two weeks in the prison cell.  They suspect me of stolen property.  My girlfriend came to visit.  I phoned her.  She asked them to return our things.  The police asked for R200 [US$28.69] from her for them to return the stolen properties.  She gave R200 to the police.  They didn’t give the things.  I am on bail for R500 [US$71.74].  I am going to court about the properties stolen from me.  The case is on October 12 in Nelspruit.  They said I can get a lawyer or speak myself.  I said I’ll speak myself.  Now it’s three times they give me a reminder [officials have reminded him on three occasions of his pending court case].  I know the police—there were three of them—and security—there were two—and immigration—there were two.²¹⁸ 

This man also claimed that police often harassed and stole from foreigners when they went shopping in town at the end of the month.  “If I come to town to shop, they stop me.  They search me.  About a month ago, they looked at my phone.  They didn’t take it.  It’s a cheap phone.  It’s not the only time.  It happens often.  Every month, at the end of the month, we shop.  We go to Shoprite and Pick ‘n Pay [in Nelspruit].  That’s when the police stop us.”²¹⁹

A 22-year-old Zimbabwean told Human Rights Watch at the IOM reception center in Beitbridge that he had successfully bribed police in June 2006 not to arrest him.  He was working in the garden of a man with a brickyard in Manini village near Thohoyandou in Limpopo when the police arrived.  “I said, ‘We can help each other.  Maybe you need money.’   I said, ‘I’ve got R50 [US$7.17].’  They said it’s too little.  I said, ‘R70 [US$10.04].  That’s all I have.’  They agreed.”²²⁰

DHA officials at Komatipoort and the Lebombo border post informed Human Rights Watch that the SANDF border patrollers took money from Mozambicans who entered South Africa illegally.  A DHA official at Lebombo border post described how the SANDF’s Mpumalanga headquarters in Nelspruit had military units at Macadamia, Lebombo, and Skukuza in the Kruger National Park that rotate every three months.  Though each new batch receives training on the legal procedures, the DHA official volunteered that corruption persisted.²²¹   Asked if she could explain monthly fluctuations in the number of Mozambican deportees from the Komatipoort police station, an immigration official at DHA Komatipoort office said, 

Yes.  We mostly rely on SANDF on the border.  They’re only here for three months.  The first two months they are full of energy.  After a month or so, they drop.  They take bribes.  There’s a loss of energy.  This month they’ve caught at most 10.²²² 

Pressed on how she knew the border military units took bribes, she explained, 

The people we’ve caught say they’ve paid SANDF.…  Each and every person who goes through the fence must pay the [Mozambican] runner.…  The “runner” asks [the border jumper] for R200 [US$28.69].  He [the runner] must give the Mozambican official and the SANDF a cut.  The runner only makes about R30 [US$4.30] per head.  The SANDF asks for R10 per head.  There’s a hole on the riverside [the Crocodile river]; a guy showed us.  We found R240 [US$34.43].   We did contact the Colonel of the base group but we don’t know what happened.  There are several of these holes in the ground along the border post area.  SANDF doesn’t actually directly take the money but they can collect it at the hole.  At each and every office—even at this office—there are people who take money.  It’s not right to say it of your colleagues.  But the truth is the truth.²²³

A 23-year-old Mozambican from Moamba described how on his first trip to South Africa in January 2003 he and his friends arrived at the border gate without passports.  The Mozambican officials told them they could not cross.  They each paid R150 (US$21.52) to runners who showed them the way to enter South Africa.  On their second day in South Africa they encountered police and soldiers at a military camp.  “They also requested money from us.  They just requested money for cool drink.  Because we didn’t have any small money to give them, when I took out R100, they took it.  They took money from all of us.”²²⁴

Detention not in compliance with legal standards

As a party to the ICCPR, South Africa has the obligation to treat with humanity and human dignity all persons deprived of their liberty.  Accused and convicted persons, accused juveniles and adults, and juvenile and adult offenders must all be separated from one another. ²²⁵  Moreover, South Africa’s obligations under the ICCPR and the ACHPR prohibit all forms of degradation, including inhuman or degrading punishment and treatment.²²⁶  South Africa’s international obligations to respect the right not to be detained in conditions that are inhuman or degrading and to respect the rights of minors in detention are reflected in several pieces of domestic law. 

The Immigration Act provides that an “illegal foreigner” must be detained “in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.”²²⁷ Under the constitution, everyone who is detained has the right “to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.”²²⁸  The constitution also protects all children from detention, unless it is a measure of last resort, in which case children must be kept separately from detained persons over 18 years old.²²⁹ 

The Immigration Regulations stipulate the minimum standards for accommodation, nutrition, and hygiene in detention.²³⁰  Every detainee must be provided with a bed, mattress, and at least one blanket; three meals a day, served at defined intervals and not more than 14 hours between the evening meal and breakfast the next day; and the means to keep his or her person, clothing, bedding, and room clean and tidy.  Male and female detainees (unless spouses), detained minors who are not with their parents, and detainees in different security risk categories should all be kept separately.  Unaccompanied minors should not be detained.  In September 2004 the Pretoria High Court ruled that unaccompanied foreign children must be dealt with under the provisions of the Child Care Act rather than the Immigration Act.²³¹

Failure to provide adequate food, access to medical care, and clean cells

Human Rights Watch interviewed two Zimbabwean farm workers, both in their early twenties, who were arrested near the end of their first month on a farm in Thohoyandou, Limpopo province.  Police arrested them on the farm at night while they were asleep.  They spent that night at Muswodi police station and received no food the next day.  They were transferred in the afternoon to Tshamutumbu police station.  They were given supper at around 3:30 that afternoon and for each of the next three days they received only supper at the same hour.  They were given foam rubber to sleep on but no blankets.  They had to wait for four days until there were enough people to justify providing transport to deport them.  “The last number we had when I counted was 152.  You can’t sleep.  You just stand.  This morning we got deported.  It was over, overcrowded in the van.  More than 50 in that van—that’s their rule.  You can only get fresh air when the van starts to move.”²³²

After being beaten and stripped of their clothing by Zimbabwean criminals as they crossed the Limpopo river, a 48-year-old Zimbabwean, his 32-year-old wife, and his two cousins were arrested by police near Madimbo:

If you’re arrested and put in the cell, they don’t provide enough food.  My wife was in the cell of ladies….  The two cousins were in the cell with me.…  We were arrested in the morning yesterday and we were supplied with one meal up until this morning [the next day] when we were provided with a cup of tea and a piece of bread as we were getting into the car.  I think the government is providing the food but police are taking it.  They just give you a little.  Most of them will be Zimbabweans in the cell but we have not committed an offense.  We can call it Madimbo police station.… I think there were about 150 males in the cell and 23 females in one cell.  They just push you in the cell and they lock.  They don’t provide blankets.  Yesterday they deported two trips [truck loads], then we [in the cell] were left with 50.  When we were coming in the car, it’s overloaded.  Some of the women are carrying babies, crying the whole way.  They took more this morning and left 11 of us [in the cell].  We said no, take us.  It’s just because of starving.  Otherwise we wait till they can fill up the car.²³³

The 19-year-old Zimbabwean from Mbare who described to us his arrest inside the Limpopo border fence (see above) told us how soldiers took him to Musina police station at round 3 that afternoon.  He left the next day around 1 p.m.  “I had no dinner at Musina.  No breakfast.  No food at Musina.  They told you to make a straight line.  If you’re at the back, you don’t get food.  There wasn’t enough food.”²³⁴

Five Mozambican males who had been detained over a long weekend at Komatipoort police station in Mpumalanga said they had been served two meals a day—dinner around noon and then tea without bread for breakfast at about 8 in the morning.²³⁵   A few days later, a new group of inmates also alleged that they had only been served two meals a day.²³⁶  When we told a police inspector about the police station’s failure to serve three meals a day, he challenged the inmates’ claims, saying he would show us the register where the police record the number of meals served daily.  The register confirmed that on some days only two meals had been served.  Indeed, there were days in which the record showed no evidence of the police providing any food.   The inspector volunteered to take up the issue with the captain.²³⁷  On the following day, the inmates reported being served three meals a day.²³⁸

On several visits to Komatipoort police station, the inmates complained to Human Rights Watch that the cell was not clean.   They said nobody had been to clean the cells, the blankets smelled of urine, and the toilet was leaking.  A Malawian detainee told us,  “We asked three times for a hosepipe and broom to clean it [the water coming from the toilet] but it did not come.”²³⁹  The police constable who was present acknowledged the problem of the leaking toilet, and said the police were waiting for the contractor to repair the toilet.²⁴⁰

Human Rights Watch learned directly of a case where neither the soldiers who arrested an undocumented foreigner nor the police who detained the person heeded a request to provide medical attention.  A 20-year-old Tanzanian and a 24-year-old from the DRC had both been arrested around 8 at night by soldiers at a Total garage in Komatipoort.  The two men had crossed the border illegally that evening.  They had met for the first time on the South African side of the border.  According to the man from the DRC, they had been attacked by three civilians shortly before being arrested by soldiers.  Their attackers had stabbed the Tanzanian and taken the Congolese man’s wallet containing R16, documents, and the shoes he was wearing.  When the soldiers arrested the two men, they ignored the Congolese man’s request that they take the Tanzanian man to hospital.²⁴¹    The police only took the man to a clinic on his second full day in the cell. 

Unlawful detention of children

On Human Rights Watch’s first visit to Komatipoort police station, six of the 21 detainees in the cell for males claimed they were under 18 years old (two said they were 15, and four claimed to be 17). They had all crossed the border with the assistance of runners.  All of them had brothers who had each paid the runners amounts ranging between R100 (US$14.35) and R150 (US$21.52).  Because all the brothers had passports and could cross legally, they arranged to link up with their siblings in Komatipoort.  From there, they would go together to Johannesburg, where the older brothers had jobs.  Their plans were thwarted because the younger brothers were arrested when the taxis they were traveling in were stopped in roadblocks or when they were about to get into taxis.  The arrests took place in the vicinity of the Shell garage in Komatipoort on a Friday night.  Those claiming to be minors spent the weekend and the Monday, a public holiday, in the cell.  According to a policeman at the police station, minors were only kept separately from adults if they were arrested as suspected criminals.²⁴²  Police officers at Komatipoort police station are acting in violation of the Immigration Act, and South Africa’s obligations under the ICCPR, when they detain unaccompanied minors with adults.

On their fifth day of detention, the 21 detainees awaiting deportation were finally transported by a DHA official to the DHA Komatipoort office for interviews prior to their deportation.  The officials paid no heed to detainees who claimed during the interviews to be unaccompanied minors.  When a detainee said he was 15 years old, one of the DHA officials said to us, “Normally the child is with the mother.  He’s just saying he’s 15 because he doesn’t want to be fingerprinted.  He’ll come with a different name next time.  With a child, we don’t fingerprint.”²⁴³ Another DHA official at the Lebombo border post dismissed even more strongly the possibility of finding “unaccompanied minors,” saying, “You don’t have it.  The child is always accompanied by someone.”²⁴⁴ 

A senior immigration officer at the DHA Komatipoort office, however, acknowledged to Human Rights Watch that they deal with about 50 unaccompanied children per year.  “Children up to 15 must not be detained. They go to social services.  Either we contact social services at Tonga (small center not too far from Komatipoort, Mpumalanga) or we send them direct to Tonga.”²⁴⁵

Unlawful detention of those awaiting deportation with convicted prisoners and those awaiting trial

At the IOM reception center in Zimbabwe, Human Rights Watch was informed by a number of deportees that they had been detained in South African police stations in cells for convicted prisoners or people on remand. 

A 28-year-old Zimbabwean who has “A” levels (Advanced Level high school qualifications, commonly referred to as sixth form) was making a living selling curios on the Durban beachfront.  Police arrested him in mid-August because he did not have a business permit.  They took him to the DHA, who took him to Durban-Westville Prison, where he spent three weeks:

There in the prison it was terrible.  We were put together with rapists, murderers.  They have what you call remand.  We were put with remandists.  Some were armed robbers, carjackers.  For us to be friendly with those people, you are supposed to have a visitor who will bring you cigarettes. Those people like cigarettes.  Those terrible people.  For you to have enough food, cigarettes play a role.  In the kitchen you could buy breakfast with cigarettes, buy meat with cigarettes, make home calls.  Even the prison officers, if you have cigarettes, you are their best friend.  Me, since I’m an artist, I have a couple of white friends who would bring me fruits and cigarettes.²⁴⁶

When a 21-year-old Zimbabwean from Bulawayo was arrested by police in Polokwane for having entered South Africa without a passport and visa, he told Human Rights Watch that he was made to share a cell with seven South African prisoners, apparently convicted for shoplifting.  Also in the cell were 42 other Zimbabweans.  He told of how he was harassed and beaten by the South Africans in the cell.  “The South African prisoners told us to beat drums and sing.  When I was tired I wanted to sleep.  Two guys came.  They started beating me.  They were kicking us with their shoes.  One was carrying gum boots and beating me.  They were saying if we don’t do what they tell you, they’ll kill us.”  Asked if he complained to the police, he replied, “The police knew what they were doing. They put us in the cell with prisoners.”²⁴⁷ 

Two IOM staff members at the reception center in Beitbridge told Human Rights Watch that one of the most common complaints they heard in their interviews with deportees was that they had been detained with prisoners.  The staff members said they had spoken to 15 deportees on October 2, 2006, who had been held for more than two months at Senwabarwana police station near Polokwane.  They were kept in a cell with South African prisoners who harassed them.  The inmates made the Zimbabweans do their laundry, clean the cell, and buy them cigarettes.  If they had no money, the inmates would beat them.²⁴⁸ 

Deportation without an opportunity to collect remuneration, savings, and personal belongings

The Immigration Act does not require state officials to give undocumented migrants the opportunity to collect remuneration, savings, and personal belongings prior to deportation.  It is immigration policy, but not yet enshrined in the law, to arrange with employers to pay the unpaid wages of “illegal foreigners” who have been arrested and detained, and to permit foreigners whose immigration status was unlawful access to their bank accounts and their personal belongings before their deportation.²⁴⁹  When state officials enforcing the Immigration Act do not respect this policy, migrant workers are being denied a means of enforcing their constitutional right to “fair labour practices,” including the right to be paid for work performed, and are effectively being deprived of their property, despite a constitutional prohibition on such deprivation. 

The rights of migrants who get deported to access unpaid wages and savings and to retrieve personal belongings are important provisions in the Migrant Workers’ Convention.²⁵⁰  Although, South Africa is yet to become a party to this convention, other international treaties that South Africa has signed reinforce the rights of undocumented foreigners to be paid for work performed and to be able to obtain their savings and belongings prior to their deportation.  For instance, the ICCPR prohibits servitude and forced labor, the African Charter prohibits “all forms of exploitation,” and the ICERD committee has affirmed that the ICERD protects the labor and employment rights of even undocumented workers as long as they are in an employment relationship.²⁵¹

A 23-year-old from Zimbabwe whom Human Rights Watch interviewed in Beitbridge lamented not being able to collect his earnings before deportation:

Our problem is no money after being arrested.  I left more than R1,250 [US$179.34] in Pretoria.  If I die in Zimbabwe, who is going to take this money?  I’m working for nothing.  And South African policemen come and arrest us at our jobs, not on the road or in a tavern.  The citizens of South Africa tell them to arrest us at our job.  Now we are working for nothing.  It’s better if they arrested us and took us home to get our money.  When I asked if they could take us with our white employer [name supplied], a building contractor, to get our money at home, then the police [three of them] beat me and put me in tight handcuffs.²⁵² 

A 23-year-old Zimbabwean who has an international diploma in business studies had been working for three months as a shop assistant for an Indian mini-mart owner.  He earned R1,200 (US$172.17) per month.  He was traveling on a bus from Beitbridge to Johannesburg, returning to his job, when he was arrested in a roadblock close to Musina.   The police ordered everyone off the bus to check their papers.  “I never managed to get anything from the bus.  I only managed to get this backpack.  I was carrying it at the time I got out of the bus.  I left a bag with clothes and money in it.  I had R500 [US$71.74].  We were taken back to where the soldiers’ camp is.  It was yesterday.”  Asked if he requested permission from the police to get his money on the bus, he replied, “I did.  They just refused.”²⁵³

A Zimbabwean who had been deported from Polokwane was distressed not only about having to leave his R50 (US$7.17) per day job as a plumber but also about having to leave behind his belongings at his rental accommodation on a farm.  He told Human Rights Watch, “My problem is I left everything—money (R580 [US$83.21]), clothes, radio, omega watch, digital camera.”²⁵⁴

Human Rights Watch interviewed a 40-year-old from Inhambane province in Mozambique in front of DHA officials who were registering and fingerprinting detainees prior to their deportation.  He told Human Rights Watch that he had worked in South Africa since 1997 and was arrested at work in Nelspruit because he did not have a work permit.  “I was working for a building contractor.  The employer is a black person by the surname of X [name supplied].  We were building houses in Nelspruit.  I was plastering.  This month I was arrested before I got the money.  I was owed R250 [US$35.87].  I was arrested when I was entering the building on Friday.”²⁵⁵ Immigration officials did not suggest that arrangements be made to enable him to recover his unpaid wages.