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 Africas 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 Africas 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 Africas 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 rapidlyapproximately 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 residentsunlike permanent residentshaving only a tenuous link with South Africa. Precisely such an assumption undergirds an important component of the reasoning behind the Constitutional Courts 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 homelandsLebowa, Gazankulu, and Vendathat 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 eras 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 workersseasonal and permanentwho 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 dont 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] cant be traced because they dont have fingerprints. Police are arresting Zimbabweans for crime and illegal immigration. We dont 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 dont have any..... If they are walking around on the farm, Farm Watch will arrest them and take them to the police. Sometimes well get police involved. Well tell them where Zimbabweans are, etc. and theyll go and raid them.
Despite this farmers 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 hell meet all labor laws but he doesnt.
Human Rights Watch interview with a white farmer and TAU official, Levubu, April 29, 2006
A Bluegumspoort farmer said, Weve 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 provinceand not only north of the Soutpansbergcomply 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 formalityand 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
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 governments 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 IOMs humanitarian assistance program will benefit Zimbabweans who have been forced to leave South Africa. Moreover, IOMs past failure to publicly confront and criticize the Zimbabwean governments 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
 Jonathan Crush, Covert Operations: Clandestine Migration, Temporary Work and Immigration Policy in South Africa (Southern African Migration Project, 1997), p. 20.
Jonathan Crush and Vincent Williams, International Migration and Development: Dynamics and Challenges in South and Southern Africa, United Nations Expert Group Meeting on International Migration and Development, Population Division, Department of Economic and Social Affairs, United Nations Secretariat, New York, 6-8 July 2005, p. 5, citing Guy Standing, John Sender, and John Weeks, Restructuring the Labour Market: The South African Challenge (Geneva: ILO, 1996), pp. 61-62.
 Human Rights Watch, Zimbabwe: Evicted and Forsaken. Internally Displaced Persons in the Aftermath of Operation Murambatsvina, A Human Rights Watch Report, vol. 17, no. 16(A), December 2005, http://hrw.org/reports/2005/zim1205; Clear the Filth: Mass Evictions and Demolitions in Zimbabwe, A Human Rights Watch Briefing Paper, September 11, 2005, http://hrw.org/backgrounder/africa/zimbabwe0905/; Not a Level Playing Field: Zimbabwes Parliamentary Elections in 2005, A Human Rights Watch Briefing Paper, March 21, 2005, http://hrw.org/backgrounder/africa/zimbabwe0305/; Zimbabwes Non-Governmental Organizations Bill: Out of Sync with SADC Standards and a Threat to Civil Society Groups, A Human Rights Watch Briefing Paper, December 3, 2004, http://hrw.org/backgrounder/africa/zimbabwe/2004/12/; Zimbabwe: Fast Track Land Reform in Zimbabwe, A Human Rights Watch Report, vol. 14, no. 1(A), March 2002, hrw.org/reports/2002/Zimbabwe/.
 The Documented Experiences of Refugees, Deportees and Asylum Seekers in South Africa: A Zimbabwean Case Study, A Written Submission Prepared by Civil Society Organisations Working on the Refugee and Asylum Seekers Human Rights Issues in South Africa, For Presentation to the Minister of Home Affairs, April 2006, Johannesburg, South Africa, p. 6.
 Ibid., p. 7. For further evidence of the particular vulnerability of Zimbabweans to abuse in the asylum process and to unlawful detention and deportation from Lindela detention center, see Kaajal Ramjathan-Keogh and Emma Ramokhele, Detention: The Lindela Repatriation Centre, in Forced Migration Studies Programme with Lawyers for Human Rights and The Wits University Law Clinic, Crossing Borders, Accessing Rights, and Detention: Asylum and Refugee Protection in South Africa, p. 71; and Gayatri Singh, Accessing Rights: Crisis and Corruption at the Rosettenville Refugee Reception Office, in Crossing Borders, Accessing Rights, and Detention, p. 51.
 The statistics are estimates provided by the Department of Home Affairs. Introduction and Overview in Forced Migration Studies Programme et al, Crossing Borders, Accessing Rights, and Detention, p. 17, refers to the backlog of cases and its dual effect of delaying protection to asylum seekers while opening the asylum system to abuse by those who wish to use the asylum process as a way to legalize their stay in South Africa.
Shambles at Home Affairs escalates, Business Day (South Africa), February 13, 2006, http://www.queensu.ca/samp/migrationnews/article.php?Mig_News_ID=2523&Mig_News_Issue=14&Mig_News_Cat=8 (accessed July 7, 2006). It notes that the 2002 Immigration Act sought to capture the white papers immigration enforcement strategy, a central feature of which was to put pressure on employers to comply with the law. However, the Department of Home Affairs instructed its officials that Parliaments direction was unenforceable.
 Loren B. Landau, Kaajal Ramjathan-Keogh, and Gayatri Singh, Xenophobia in South Africa and Problems Related To It, Background paper prepared for open hearings on Xenophobia and Problems Related to It hosted by the South African Human Rights Commission with the Portfolio Committee of the Departments of Foreign Affairs and Home Affairs, Johannesburg, South Africa, November 2, 2004, Forced Migration Working Paper Series #13 (Johannesburg: Forced Migration Studies Programme, January 2005), p. 32.
 International Organization for Migration (IOM), Current Migration Themes in Southern Africa: An IOM Perspective (Pretoria: IOM Regional Office for Southern Africa, May 2005), http://www.sarpn.org.za/documents/d0001355/index.php (accessed July 9, 2006), p. 4, citing DHA figures.
 Ramjathan-Keogh and Ramokhele, Detention: The Lindela Repatriation Centre in Forced Migration Studies Programme et al., Crossing Borders, Accessing Rights, and Detention, p. 70.
Human Rights Watch interview with South African immigration officer, Beitbridge, South Africa-Zimbabwe border, April 28, 2006.
Landau, Ramjathan-Keogh, and Singh, Xenophobia in South Africa and Problems Related To It, p. 32.
Tara Polzer, Crossing Borders: Asylum Seekers at the Zimbabwean & Mozambican Frontiers in Forced Migration Studies Programme et al., Crossing Borders, Accessing Rights, and Detention, p. 38.
UN Regional Inter-Agency Coordination Support Office (UNRIACSO), Southern African Humanitarian Crisis update (UNRIACSO, January 13, 2006), http://www.reliefweb.int/library/documents/2006/riacso-safrica-13jan.pdf (accessed July 9, 2006); refers to nearly 100,000 deportees in 2005, citing media quoting the DHA.
 Southern African Migration Project (SAMP), Making Up the Numbers: Measuring Illegal Immigration to South Africa, Migration Policy Brief No.3 (SAMP, 2001), p. 12.
 This paragraph draws on Human Rights Watch, Unequal Protection: The State Response to Violent Crime on South African Farms (New York: Human Rights Watch, 2001), pp. 52-62; and Jonathan Crush, Making Hay with Foreign Farmworkers, in Jonathan Crush, ed., Borderline Farming: Foreign Migrants in South African Commercial Agriculture, Southern African Migration Project, Migration Policy Series No. 16(Cape Town: Idasa and Queens University, Canada, 2000), http://www.queensu.ca/samp/sampresources/samppublications/policyseries/Acrobat16.pdf (accessed July 9, 2006), pp. 3, 5-7.
 Crush, Making Hay with Foreign Farmworkers,in Crush, ed., Borderline Farming, p. 5; and see also p. 2.
 Constitutional Court of South Africa. Louis Khosa v. Minister of Social Development, Case CCT 12/03 and Saleta Mahlaule v. Minister of Social Development, Case CCT 13/03 (henceforth referred to as Khosa v. Minister of Social Development), para 59: It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is, however, quite different to that of temporary or illegal residents. They reside legally in the country and may have done so for a considerable length of time. Like citizens, they have made South Africa their home. While citizens may leave the country indefinitely without forfeiting their citizenship, permanent residents are compelled to return to the country (except in certain circumstances) at least once every three years. While they do not have the rights tied to citizenship, such as political rights and the right to a South African passport, they are, for all other purposes mentioned above, in much the same position as citizens. Once admitted as permanent residents they can enter and leave the country. Their homes, and no doubt in most cases their families too, are in South Africa. Some will have children born in South Africa. They have the right to work in South Africa, and even owe a duty of allegiance to the state. For these reasons, I exclude temporary residents and it would have been appropriate for the High Court to have done so.
 Human Rights Watch, Unequal Protection, p. 55, citing Employment Trends in Agriculture in South Africa (Pretoria: Stats SA National Department of Agriculture, 2000), p.93.
 This paragraph relies on the South African Human Rights Commission (SAHRC), Final Report on the Inquiry into Human Rights Violations in Farming Communities, August 2003, http://www.sahrc.org.za/sahrc_cms/publish/cat_index_41.shtml (accessed July 9, 2006), p. 99; and Marc Wegerif, A Critical Appraisal of South Africas Market-based Land Reform Policy: The Case of the Land Redistribution for Agricultural Development (LRAD) Programme in Limpopo, Research Report no.19 (Cape Town: Programme for Land and Agrarian Studies, University of Western Cape, December 2004), http://www.sarpn.org.za/documents/d0001269/P1506-RR_19_Marc_Wegerif.pdf (accessed July 9, 2006), p. 16.
 SAHRC, Final Report on the Inquiry into Human Rights Violations in Farming Communities, p. 214, footnote 1, cites Health Systems Trust, Health and Related Indicators, 2001 Report, for the following data: 19.5 percent of households use electricity for cooking, 12.1 percent have piped water inside their homes, and 7.4 percent have telephones. Wegerif, Critical Appraisal of South Africas Market-based Land Reform Policy, p. 16, provides different figures: citing Stats SA, 2003, Wegerif notes that Limpopo province is arguably the poorest province in the country and that the province has an unemployment rate of 48.8 percent.
 Wegerif, Critical Appraisal of South Africas Market-based Land Reform Policy, pp. 15-16.
 Ibid., pp. 10, 16-17. See also Magoebaskloof farmers agree to sell, Mirror (South Africa), April 28, 2006, which reported that one community was claiming 200 Magoebaskloof fruit estates and had successfully claimed state land leased to the Sapekoe Tea Estate. On land claims in Limpopo province, see Farmers Weekly (South Africa), September 10, 2004, pp. 34-35.
David Lincoln with Claude Maririke, Southward Migrants in the Far North: Zimbabwean Farmworkers in Northern Province, in Crush, ed., Borderline Farming, pp. 40-42.
 Wegerif, Critical Appraisal of South Africas Market-based Land Reform Policy, p. 16.
 Human Rights Watch interview with a white commercial farmer who was a Transvaal Agricultural Union (TAU) official for Soutpansberg, Levubu, April 29, 2006; Human Rights Watch interview with a white commercial farmer and lawyer, Makhado, April 25, 2006.
 Crush, Covert Operations, p. 15, footnote 46, p. 37.
 Zimbabwean Farm Labourers in the Northern Soutpansberg Area Ordered to Leave, Lawyers for Human Rights Statement, October 12, 2001, http://www.lhr.org.za/refugee/news01.htm (accessed July 9, 2006); Farmers refuse to commit economic suicide, Zoutpansberger (Soutpansberg), October 19, 2001.
 Human Rights Watch interview with a white commercial farmer who was a TAU official for the northern region, Makhado, April 25, 2006.
 For background to the MOU, see Minister Calls for Closer Cooperation with Zimbabwe, South African Department of Labour, January 9, 2003, http://www.labour.gov.za/media/statement.jsp?statementdisplay_id=9781 (accessed July 9, 2006).
 Immigration Act, No. 13 of 2002, http://www.info.gov.za/gazette/acts/2002/a13-02.pdf (accessed July 9, 2006).
 Immigration Amendment Act, No. 19 of 2004, http://www.info.gov.za/gazette/acts/2004/a19-04.pdf (accessed July 9, 2006).
Immigration Act, as amended by Immigration Amendment Act, section 21(2).
 Immigration Regulations, 2005, section 18(1)(b) and (c), http://www.dha.gov.za/documents/IMMIGRATION%20REGULATIONS%20FINAL_excl%20Annexure%20A.pdf (accessed July 9, 2006).
 Regulations on Fees, June 27, 2005, section 2, http://www.dha.gov.za/documents/IMMIGRATION%20REGULATIONS%20FEES.pdf (accessed July 9, 2006).
 Immigration Regulations, 2005, Section 3. Section 21(2)(b) of the Immigration Act, 2002, makes employers bear the primary responsibility for monitoring the workers compliance with the provisions of the corporate permit and the Immigration Act.
 SAMP, Deportees now destitute, Zimbabwe Situation, March 17, 2006, in Migration News, March 2006, http://www.queensu.ca/samp/migrationnews/nws_sum.php?Mig_News_Issue=15 (accessed July 25, 2006).
 Human Rights Watch email correspondence with Nicola Simmonds, IOM, Harare, April 19, 2006, with attachment Humanitarian Assistance for Deportees (undated).
 The IOM Reception and Support Centre in Beitbridge, in IOM Harare Newsletter, No.3, July 2006; Human Rights Watch email correspondence with Nicola Simmonds, IOM, Harare, June 27, 2006.
. Human Rights Watch email correspondence with Nicola Simmonds, IOM, Harare, June 12, 2006.
 Human Rights Watch interview with a South African immigration official, Beitbridge, South Africa-Zimbabwe border, April 28, 2006.
 Human Rights Watch, Zimbabwe: Evicted and Forsaken, and Human Rights Watch Statement to the IOM Governing Council 29 Nov-2 Dec 2005 (90th Session), http://www.hrw.org/backgrounder/arms/arms1205/arms1205.pdf (accessed July 31, 2006).