The Legal Framework: Migrants’ Status and Employment Conditions

The Bill of Rights entrenches the rights of everyone in South Africa, inter alia, to equality before the law, human dignity, personal freedom and security, privacy, and due process of law.⁵²  For example, everyone, including a non-citizen, who is arrested for allegedly committing an offense has the right to be brought before a court within 48 hours after the arrest, and everyone who is detained has the right, inter alia, to challenge the lawfulness of the detention before a court, and to have conditions of detention that are consistent with human dignity.⁵³ Similarly, under international law some civil and political rights must be provided on an equal basis to nationals and migrants, either because the right is absolute or because selective denial could not be justified by the government as reasonable or proportionate.   Economic and social rights for migrants, however, present a greater challenge in domestic and international law as these rights are not absolute.  Fair labor practices for all workers do not present the same challenge in international law: equality of employment conditions for those in the work force, including irregular migrants, is perhaps less controversial than other socio-economic rights under international law.⁵⁴

Under the constitution, international law must be considered in the interpretation of the Bill of Rights and other national legislation.⁵⁵  South Africa has ratified the International Covenant on Civil and Political Rights⁵⁶ and signed the International Covenant on Economic, Social and Cultural Rights.⁵⁷  South Africa has also signed, but has not ratified, the African (Banjul) Charter on Human and People’s Rights.⁵⁸   (A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed that treaty.)⁵⁹

The Aliens Control Act, 1991, amended in 1996, encouraged and governed permanent immigration for Europeans.  African migrants from the Southern Africa region seeking legal access to South Africa were subjected to a dual system of control.  The Aliens Control Act provided specific exemptions from the Act for persons who entered South Africa for employment in terms either of any conventions with the governments of neighboring states or temporary employment schemes approved by the minister of home affairs.  These exemptions were designed for the mining industry and white commercial farmers, and allowed them the right to employ non-South Africans under separate terms and conditions than those prescribed by the Act.⁶⁰  The Aliens Control Act was replaced by the Immigration Act of 2002, which became effective in 2003.

The 2002 immigration law was developed by then-Minister of Home Affairs Mangosuthu Gatsha Buthelezi and his advisors, who were not members of the governing African National Congress party.⁶¹  The 2002 Act and the accompanying regulations were largely inconsistent with stated government policy to remove obstacles to the entry of skilled migrants.  Except for large employers, the 2002 Act together with the regulations mostly made the process of entry more complicated and time consuming.⁶² Following a 2004 directive from President Thabo Mbeki to the Ministry of Home Affairs to bring the Immigration Act into line with national policy objectives, the Immigration Amendment Act was introduced and became fully operational with the publication of new Immigration Regulations in July 2005.⁶³

The Immigration Act provides for the arrest, detention, and deportation of “illegal foreigners” and for the punishment, by a fine or imprisonment, of those who employ or aid them.⁶⁴  With respect to foreign workers, the legislation generally promotes temporary rather than permanent residence and does not encourage family immigration.⁶⁵  The legislation provides for thirteen types of temporary residence permit and five types of work permit.⁶⁶  Generally, the main consideration in issuing work permits is whether the employer can demonstrate that a South African citizen or permanent resident is not available for the position.⁶⁷  The employer is also required to demonstrate that the terms and conditions of employment will not be inferior to those applicable for citizens.⁶⁸  The Immigration Act ends employers’ access to special exemptions for the recruitment of foreign workers based on the minister’s approval, but provides for bilateral agreements, thereby preserving existing treaties with governments in the region.⁶⁹   

The legal environment for farm workers has improved substantially, beginning in 1993.⁷⁰  South African labor legislation implicitly assumes that foreign workers are legal under the Immigration Act and therefore does not distinguish between documented and undocumented workers.  Additionally, South Africa’s employment laws apply to all legal workers in the country, and therefore these laws make no explicit distinctions between citizens and non-citizens.⁷¹  Farm workers came under the protection of the Basic Conditions of Employment Act, 1993.  The Agricultural Labor Act, 1993 (No. 147 of 1993) recognized the right of farm workers to organize.  The Labor Relations Act, 1995 (No. 66 of 1995) introduced a new framework for employer-employee relations that included the commercial farm sector. The Unemployment Insurance Act, 2001 (No. 63 of 2001) extended unemployment benefits to farm workers.⁷²  Importantly, this legislation and its counterpart, the Unemployment Insurance Contributions Act, 2002 (No.4 of 2002)⁷³ explicitly exclude, among others, foreign workers on contract, and hence all documented foreign migrant farm workers.⁷⁴  Consequently, neither farmers who employ foreign workers on contract nor foreign contract workers are required to make the mandatory contributions to the unemployment insurance fund.

The Basic Conditions of Employment Act, 1997,⁷⁵ which was amended in 2002,⁷⁶ seeks to give effect to and regulate the right to fair labor practices conferred by section 23(1) of the constitution by establishing and enforcing basic conditions of employment, and to give effect to the state’s obligations as a member state of the International Labour Organization.⁷⁷  In December 2002, the minister of labor announced a Sectoral Determination for the Farm Worker Sector, using his power in terms of the Basic Conditions of Employment Act, 1997.⁷⁸  The Sectoral Determination included a minimum wage for farm workers for the first time and regulations for the particulars of employment, hours of work, leave, the prohibition of child labor and forced labor, and termination of employment. ⁷⁹ On February 17, 2006, the minister of labor announced a new Sectoral Determination for the Farm Worker Sector⁸⁰ that provides for an increase in the minimum wage from R785.79 (US$113) per month/R4.03 (US$0.57) per hour to R885 (US$126) per month/R4.54 per hour (US$0.64) (Area A), and from R949.58 (US$134) per month/R4.87 (US$0.68) per hour to R994 (US$140) per month/R5.10 (US$0.72) per hour (Area B), to apply between March 1, 2006, and February 28, 2007.⁸¹  The 2006 Sectoral Determination also prescribes minimum wage increases for 2007 and 2008 respectively.