Foreign African migrants in South Africa, whether documented or undocumented, are vulnerable. The situation of Zimbabweans in Limpopo province shows two aspects of the problem. If undocumented, a Zimbabwean migrant is liable to be arrested, detained, and deported under conditions that flout South Africas Immigration Act. And documented or not, farm workers on commercial farms are subject to their employers violating basic employment law protections.
The Immigration Act is routinely violated. When apprehending suspected undocumented foreigners, police and immigration officials fail to verify their status and identity, and police and military personnel assault and extort money from foreign migrants. Immigration officers also detain undocumented foreigners for more than 30 days without pursuing proper procedures, and detention conditions do not meet prescribed standards. The immigration law makes no provision for migrant workers facing deportation to collect their unpaid wages and transfer their earnings, savings, and personal belongings.
With respect to labor laws, farmers openly disregard the minimum wage, sometimes use a piece rate system rather than the hours of work to calculate remuneration, and make unlawful deductions from workers wages. The prescribed basic conditions of employment for farm workers create disincentives for employers to provide housing for workers. Though migrant workers are legally entitled to workers compensation, there are obstacles to them receiving compensation settlements. Documented Zimbabwean farm workers who worked under South African farm supervisors complained of discriminatory treatment.
The violations of immigration and employment laws, and deficiencies in these laws, result in the infringement on rights that migrants should enjoy under the Constitution of South Africa. These rights include, among others, the right to personal freedom and security, and to conditions of detention that are consistent with human dignity and privacy. The failure to protect the constitutional rights of migrants also frequently violates the Government of South Africas international obligations under the International Covenant on Civil and Political Rights (ICCPR). The constitution also protects the rights of at least documented migrants to fair labor practices.
Human Rights Watch calls on the Government of South Africa to amend the immigration law by inserting provisions to protect migrants against arrest and deportation when their illegal status is due to bureaucratic deficiencies in providing workers documentation in a timely fashion. The government is urged to become a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and to incorporate its provisions in the Immigration Act.
The government should also enforce compliance with its immigration and labor laws. The government should ensure that the procedures for arrest, detention, and deportation in its immigration law are enforced. It should also create a system that permits migrants to report human rights abuses they have experienced; hire more labor inspectors; train immigration and police officials to adhere to the law; and investigate and punish those officials who violate the law. The government should remove obstacles from the relevant law to enable migrant workers to receive the workers compensation to which they are legally entitled. Human Rights Watch calls on the government to offset the legal disincentives for farmers to provide housing by developing a housing policy for farm workers.
The government needs to rapidly devise a housing policy for farm workers if it is to meet its constitutional obligations, which were endorsed in 2000 by the Constitutional Court, to progressively realize the provision of adequate housing for everyone. To what extent everyone will include migrants will likely depend on future adjudication. Human Rights Watch also urges the Government of South Africa to address the specific situation of undocumented Zimbabwean migrants in South Africa by devising a comprehensive policy to address the lack of status of this large group.
The report is based on a Human Rights Watch mission to Limpopo province in April and May 2006. Because of the historical predominance of Zimbabwean migrants on farms in the far north of Limpopo province and the increasing numbers of Zimbabwean migrants fleeing the deteriorating political and economic situation in Zimbabwe, Human Rights Watch focused its research on Limpopo. Human Rights Watch conducted interviews with farmers and farm workers north of the Soutpansberg around Weipe and Tshipise, and south of the Soutpansberg around Levubu and Vivo, to learn about migrants status and employment conditions. Human Rights Watchs interviews with police, Zimbabwean migrants awaiting deportation, and undocumented Zimbabwean migrants, usually walking on the road en route to Johannesburg, provided information on the process of arrest, detention, and deportation of illegal foreigners. Human Rights Watch also conducted interviews with lawyers (invariably farmers themselves) who advised other farmers on compliance with the immigration law. In Johannesburg and Cape Town we spoke to scholars of migration at Forced Migration Studies Programme, Lawyers for Human Rights, and Southern African Migration Project; nongovernmental organizations that provide services for Zimbabwean migrants (for example Southern Africa Womens Migration Association, and Zimbabwe Torture Victims/Survivors Project); and an activist organization, Zimbabwe Solidarity Forum.
The names of farmers, farms, and migrants are not used to protect the security of individuals concerned.