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Background

Migration to South Africa

Since 1994, the number of documented and undocumented migrants in South Africa has greatly increased.  Most migrants come from neighboring countries that are fellow members of the regional organization, the Southern African Development Community (SADC). Several factors have contributed to the growing influx of foreign migrants:  South Africa’s long and porous borders with its neighbors are difficult to control;¹   the potential supply of labor from the SADC member states is “enormous and elastic;”²  and South Africa’s economic dominance in the region makes it an attractive destination for migrants.  The political and economic situation in Zimbabwe, which has continued to deteriorate since 2000, also fuels migration.³  Zimbabweans are arguably the biggest group of foreign Africans in South Africa.⁴ 

Zimbabweans who seek asylum in South Africa face particular problems. Asylum and refugee determinations are governed by the Refugees Act, 1998 (No. 130 of 1998).  A 2006 study commissioned by Lawyers for Human Rights and several other organizations found that Zimbabwean refugees and asylum seekers are especially vulnerable to abuse by various government departments, and more particularly by officials in the Department of Home Affairs (DHA) and South African Police Service.⁵  The study also revealed a perception among police officers that there is “no war in Zimbabwe,” and therefore Zimbabweans could not possibly have a right to political asylum or refugee status.⁶  Officials’ attitudes to Zimbabwean asylum seekers help to explain why at the end of 2005 only 114 Zimbabweans had secured refugee status,  while nearly 16,000 Zimbabweans had pending cases for refugee status.⁷

In 2003, South Africa’s new immigration law became operational.  As in the 1990s, South Africa still seeks to control illegal migrants through deportations rather than pressure on employers to comply with immigration law.⁸  Its aggressive deportation policy, despite making substantial demands on financial and human resources, has not been able to stem the increase in illegal migrants.  The number of deportations from South Africa has grown significantly in recent years, as Department of Home Affairs (DHA) statistics indicate: 44,225 (1988),⁹ 96,515 (1993),¹⁰ 151,653 (2002),¹¹ approximately 155,000 (2003),¹² 167,137 (2004)¹³; although not made available to us, we were informed that there were still higher numbers for 2005.¹⁴  Zimbabwean migrants deported from South Africa have also increased rapidly—approximately 17,000 (2001),¹⁵ 74,765 (2004),¹⁶ nearly 100,000 (2005).¹⁷  Rather than reflecting greater success in crafting immigration policy, these increases in deportations are more likely indicative of a growing number of undocumented migrants.  Deported individuals often return almost immediately to South Africa, underscoring the limitations of the deportation policy.¹⁸

Foreign migrants on farms in South Africa

Agriculture in South Africa is a major employer of foreign migrant labor.¹⁹   While the number of people employed in regular and seasonal employment on commercial farms has declined, there has been an increase in the employment of foreign migrants since 1990.  Farms in border areas in particular employ foreign migrants, who tend to concentrate in border areas or where major migration routes cross commercial farming districts. Hence migrants from Lesotho are found concentrated in the Free State, Mozambicans in Mpumalanga and in the south and southeast of Limpopo province, and Zimbabweans in the northern part of Limpopo province.

Many foreign farm workers have worked on farms for extended periods of time.  The 1996 Farmworkers Research and Resource Project survey of farm workers, the first attempt to document conditions on South African farms, concluded that over 50 percent of “immigrant farmworkers” had been on the farm for more than five years, about 16 percent for 11-20 years, and some 10 percent for more than 20 years.  These findings suggest, as Jonathan Crush notes, “a long-standing pattern of permanent farmwork and residence in South Africa by non-South Africans.”²⁰   The data on foreign farm workers also blur the distinctions between permanent residents, temporary residents, and illegal residents, insofar as these categories rest on assumptions about temporary residents and illegal residents—unlike permanent residents—having “only a tenuous link” with South Africa.   Precisely such an assumption undergirds an important component of the reasoning behind the Constitutional Court’s 2004 judgment in the two cases in which permanent residents challenged certain provisions of the Social Assistance Act, 1992 (No. 59 of 1992).²¹  The Constitutional Court ruled that the provisions that reserved social assistance benefits for only South African citizens were unconstitutional and had to be extended to include permanent residents.   

Farm workers, including foreign migrants, have had the right to organize since 1993, but they have unionization rates of only 12 to 14 percent.  According to a Stats SA 2000 survey of employment trends in agriculture, “in terms of key socio-economic variables, the situation of people employed in the agricultural sector tends to be less favorable than every other major sector of the economy.”²²   A 1998 study of border area commercial farms found many foreign migrants were undocumented, making them even more vulnerable to exploitation.

Zimbabwean farm workers in Limpopo province

Limpopo province has a population of approximately 5.3 million.  Nearly 90 percent of the population lives in rural areas, making it the most rural province in the country.²³  It is also the poorest province of South Africa, with the highest official unemployment rate (34 percent) and the worst scores on other poverty indicators.²⁴  Its economy relies primarily on agriculture and tourism.   Over two-thirds of the land in Limpopo was allocated for white ownership and use in the past.  The vast majority of the population lived in the former homelands—Lebowa, Gazankulu, and Venda—that occupied most of the remaining one-third of the land. ²⁵ 

Though the pace of land reform in Limpopo province has accelerated, and restitution claims have succeeded or are being adjudicated, the apartheid era’s racially discriminatory patterns of land ownership have not substantially altered.²⁶  Most large commercial farms are still owned by whites; black farmers engage mainly in subsistence farming on communal land or small-scale commercial farming.  

There is great diversity and complexity in the commercial agricultural sector.  North of the Soutpansberg, mainly stock farms and a smaller number of game farms cover most of the land given over to commercial farming.  Citrus and vegetable farms are concentrated in the Limpopo Valley, especially Weipe, in Tshipise, and in Waterpoort.  At the foot of the Soutpansberg, there is sub-tropical agriculture in Levubu.  Commercial forests lie on the higher slopes and stock farms are to the south.  The province also has private tea estates on land leased from the state, and tobacco farms.²⁷  

The agricultural sector is the largest employer outside the public sector, employing 118,261 people (only the Western Cape has a larger number of farm workers).²⁸ The most labor intensive commercial agricultural farms are the citrus and fruit farms north of the Soutpansberg, and most of these farms each depend on hundreds of Zimbabwean workers—seasonal and permanent—who live on the farm.  Farms at the foot of the Soutpansberg producing sub-tropical products or vegetables are less labor intensive than those to the north, and depend almost solely on South African labor that is more readily accessible because of the proximity of the former Venda homeland. The local workers commute to their homes on weekends or even daily.  Farmers who depend on South African labor are hostile to Zimbabwean migrants, holding them responsible for the increase in crime in the province.  Some farmers talk openly of how they strive to keep their areas “clean of Zimbabweans.”²⁹

I told the minister of labor in Tshipise I don’t want us to employ Zimbabweans.  They come on the farms overnight and stay with friends; then they go to Johannesburg.  They are putting pressure on crime and the social system.  Ask the police.  Many pregnant Zimbabwean women come here to have a child.  They can get a grant of R 190 per month per child.  I grew up on a farm.  They [Africans] are lazy.  Where they can get money for free, they will.  The main problem is the security threat.  They [undocumented foreigners] can’t be traced because they don’t have fingerprints.  Police are arresting Zimbabweans for crime and illegal immigration.  We don’t want them in front of the mountain and we want to get rid of the stepping stone [foreign migrants using farm work as a stepping stone to get to Johannesburg].  I want this area clean of Zimbabweans.  Local crime syndicates are using Zimbabweans to achieve their aim.  From Levubu to around town [Makhado/Louis Trichardt], we try to avoid them.  I don’t have any.....  If they are walking around on the farm, Farm Watch will arrest them and take them to the police.  Sometimes we’ll get police involved.  We’ll tell them where Zimbabweans are, etc. and they’ll go and raid them.

Despite this farmer’s opposition to the use of Zimbabwean labor, he said many contractors, on whom Levubu farmers increasingly rely, did use undocumented Zimbabwean workers.  “Why must I police the contractor?  The department of labor must.  In practice, farmers are not checking on contractors.  You sign a contract that he’ll meet all labor laws but he doesn’t.” 

—Human Rights Watch interview with a white farmer and TAU official, Levubu, April 29, 2006

A Bluegumspoort farmer said, “We’ve cleaned them [Zimbabweans] out in Bluegumspoort because they are an extreme danger.  They killed the Haywards [owners of Mountain View Lodge].  We only clean out those without work permits.  They kill the people, they rob; they threaten the Venda.  Venda are now working with us to get rid of them.” The wife of a farmer interjected: “Venda, if they see a Zimbabwean, they stone them.” 

—Human Rights Watch interview with a white farmer and lawyer, Makhado/Louis Trichardt, April 25, 2006

From the early 1980s, farmers north of the Soutpansberg recruited Zimbabwean workers under the special exemption provision in the Aliens Control Act.  Many farmers disregarded the law and employed undocumented workers.³⁰   In 1999 the farmers were instructed by the provincial DHA to phase out their approximately 15,000 Zimbabwean workers and hire only South African labor by mid-October 2001.³¹   Farmers failed to comply, arguing that South African labor was not available for work on their farms.  In November 2001, the Transvaal Agricultural Union (TAU, the conservative farmers’ union), and the government reached an informal agreement to allow farmers to employ Zimbabweans on farms north of the Soutpansberg, provided foreign workers received the same wages and benefits as South African farm workers.³² 

In October 2004,  the governments of South Africa and Zimbabwe signed a Memorandum of Understanding (MOU) on Employment and Labor to ensure that farm owners in the entire Limpopo province—and not only north of the Soutpansberg—comply with immigration and labor laws.³³  Specifically to facilitate the documentation of Zimbabwean migrants on farms in Limpopo, the government of Zimbabwe agreed under the MOU to issue them emergency travel documents (ETDs).  ETDs are issued more quickly and cheaply than passports, thus advantaging Zimbabweans who already work as farm workers or who will work on farms in Limpopo province over other prospective Zimbabwean migrants to South Africa, who must obtain a passport. 

Since 2005, under the Immigration Act, 2002 (No. 13 of 2002),³⁴ which was amended by the Immigration Amendment Act, 2004 (No. 19 of 2004),³⁵ farmers who seek to employ foreigners apply to the DHA for a corporate permit.  The DHA determines the maximum number of foreigners the corporate permit applicant may hire.³⁶  Farmers must submit proof of the need to employ the requested number of foreigners (see below)—evidently a formality—and provide a job description and proposed remuneration for each foreigner.³⁷ With a flat fee of R1,520 (US$215) irrespective of the number of corporate workers hired, the corporate permit  is cheap; individual work permits cost R1,520 each.³⁸  The corporate permit holder must ensure that the passport (or the 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.³⁹

The International Organization for Migration and Zimbabwean migrants 

At the end of May 2006, the International Organization for Migration (IOM) opened a reception and support center on the Zimbabwean side of the South Africa-Zimbabwe border at Beitbridge.  The center, funded by the British government’s Department for International Development, is an inter-ministerial project that will involve the Zimbabwean ministries of health, home affairs, and labor and social welfare.⁴⁰  The center will also house offices for these ministries.⁴¹  A major objective of the center is to provide humanitarian assistance to the growing number of Zimbabwean migrants deported from South Africa.  IOM offers all deportees a free meal, medical assessments and information materials on HIV and irregular migration, and entitlement to free basic health care at Beitbridge Hospital upon referral.  In addition, the IOM offers free transport and a food pack to deportees who choose to return to their homes.⁴²  The program will also assist the government of Zimbabwe to cope with social problems in Beitbridge that are related to the growing concentration of deportees in the town. 

In coordination with the Department of Social Welfare in Zimbabwe, the IOM intends to establish an agency “which will facilitate the placement of qualified Zimbabweans (above 18 years and with passports) on commercial farms in Limpopo province of South Africa.”⁴³  In correspondence, the IOM said it will work with nongovernmental organizations like Nkuzi Development Association, to “ensure that those Zimbabweans who choose to work on commercial farms do so legally and are treated fairly.”⁴⁴ 

Most deportees seek to return to South Africa because they have few, if any, income earning possibilities in Zimbabwe and because food and basic social services are either lacking or too expensive.  Sending deportees to their homes is in the interests of the government of South Africa, which for some time has wanted the government of Zimbabwe to return deportees to their home areas to prevent them from immediately re-entering South Africa.⁴⁵  

Human Rights Watch is deeply skeptical of how the IOM’s humanitarian assistance program will benefit Zimbabweans who have been forced to leave South Africa.  Moreover, IOM’s past failure to publicly confront and criticize the Zimbabwean government’s human rights abuses in the context of international humanitarian assistance suggests it will be unlikely to defend migrants’ and deportees’ rights should so doing require an oppositional stance toward the government.⁴⁶