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

The Immigration Act, as amended by the Immigration Amendment Act, defines a “foreigner” as an individual who is not a citizen and an “illegal foreigner” to mean a foreigner who is in South Africa in contravention of the Act.⁸²  Section 34 of the Immigration Act, as amended by the Immigration Amendment Act, governs the procedures for the arrest, deportation and detention of “illegal foreigners”. Lawyers for Human Rights challenged the constitutionality of parts of section 34 in the Pretoria High Court,⁸³ and sought confirmation in the Constitutional Court of the High Court’s order with respect to those provisions that the High Court ruled to be unconstitutional.⁸⁴  Despite these constitutional challenges, section 34 remains intact.

Human Rights Watch found violations of the procedures for the arrest, detention, and deportation of “illegal foreigners” by police and immigration officials.  These violations have been documented in other research and must be understood as widespread and systematic rather than idiosyncratic and anecdotal.⁸⁵  Human Rights Watch also became aware of legal gaps in the Immigration Act and the Immigration Amendment Act, arising from the administration of the corporate permit provisions and the arrest, detention, and deportation process.  These legal violations and gaps, and where applicable, their consequences for the human rights of foreign migrants as provided for in the constitution, are identified below. 

Unlawful procedures and acts in the arrest, detention, and deportation of undocumented foreigners

Officers’ failure to verify the status and identity of suspected “illegal foreigners”

The Immigration Act and Immigration Regulations provide that an immigration or police officer must assist an individual apprehended on suspicion of being illegally in the country to verify his or her identity or status, including by accessing readily available relevant documents or contacting relatives or others who could prove the individual’s identity and status.⁸⁶ 

At Makhado (Louis Trichardt) police station, a police officer described to Human Rights Watch the role of the Department of Home Affairs with respect to illegal immigrants who were detained in the police cells: “We call the Home Affairs Department to come and check illegals’ documents.  If Home Affairs finds the documents okay, Home Affairs is the one to release him.  Maybe the person doesn’t have his document.  Maybe the next day, the friend will bring the passport or document.  Home Affairs must be the one to release.”⁸⁷ 

Detainees in the Makhado police cell told Human Rights Watch that no officials had visited them.  Many had been arrested the previous day, but one detainee had spent 19 days and another over three months in the police cell.  A Zimbabwean from Bulawayo who had been working on a farm related how he had not been given an opportunity to retrieve his work permit: “I’ve been working there [on the farm] six years.  It’s along the Thohoyandou road.  I’m the only Zimbabwean on that farm.  After 12 days I get R560 [US$80].  I was arrested yesterday.  I have a work permit at work.  I asked them this morning to phone my home to ask them to bring the document but they did not.  Nobody at home even knows where I am.”⁸⁸  Another Zimbabwean detainee said his South African wife had taken his ID when she left him: “I was married to a South African, with a child.  I am working here since 1999.  She left with the ID.  I went to Home Affairs.  They have fingerprints, etc. but they did nothing.  How can I get my ID back?”⁸⁹

At Musina police station, two police officers gave initially contradictory accounts of the role of DHA officials with respect to Zimbabwean detainees awaiting deportation.  A police inspector told Human Rights Watch: “You can’t deport Malawians without the DHA first dealing with them.”  When asked why there was a different practice for Malawians and Zimbabweans, he replied, “The instruction is that we can simply deport Zimbabweans, unlike Malawians who must first see the DHA.  I don’t know why.”⁹⁰  About an hour later, the police officer in charge of communications described standard procedures, which included:  “The station calls the Home Affairs Department to verify the information of the Zimbabweans.”⁹¹  He went on to talk about asylum seekers.  At Musina police station, he said, no one had claimed asylum.  On a different visit, the communications officer acknowledged that the DHA treated Malawians and Zimbabweans in detention differently.  “Malawians are usually claiming asylum, that’s why DHA is involved.”  Otherwise, “DHA does spot checks to verify identities.  Maybe DHA comes to establish if there are any problems for asylum.”⁹² 

The DHA practice at Musina police station of assuming that all Zimbabweans are economic migrants deprives those seeking asylum of an opportunity to declare their status to a DHA official.  The assumption that Zimbabwean migrants are not asylum seekers because Zimbabwe is not at war is, as noted earlier, widespread among officials in the DHAs and the South African Police Service, and does not explain the different treatment Malawians receive, as Malawi is also not at war.

On a third visit to Musina police station, Human Rights Watch encountered a Zimbabwean asylum seeker who was awaiting deportation.  The 36-year-old Zimbabwean man from Chipinge said he and a friend had crossed the border illegally and had been arrested on a bus at Masisi, near Kruger National Park, en route to Thohoyandou.  They were taken to Masisi police camp, and then to Musina police station.  “We are opposition party supporters.  We have been chased, and then we ran, and then we came here.”⁹³  They were trying to reach Pretoria, where the interviewee had been told he could get a refugee permit.  This was his second attempt to obtain refugee status: On his first attempt in May 2005, he had entered South Africa illegally.  The DHA at Beitbridge had issued him with an asylum transit permit—in terms of the Immigration Act, as amended, the director-general of the DHA may issue an asylum transit permit, valid for 14 days, to a person who at a port of entry claims to be an asylum seeker⁹⁴—and had told him to report to a Refugee Reception Office.  Worried about his family’s safety, he had decided to return home, however.  When Human Rights Watch asked whether the police officer could advise the detainee, the police officer told the detainee: “Tell the police to drop you at Beitbridge on the South Africa side.”  The police officer said to us, “We set up an office in Beitbridge especially for issuing refugee permits.  They are only valid for 14 days.  Home Affairs came and interviewed all of them.  Why didn’t he [the asylum seeker] tell them?”  Asked if the police would drop the detainee off at Beitbridge on the South African side, the communications officer responded: “They should.  Will they?  That’s another thing.  I’m working tomorrow and will tell the police to drop him at Beitbridge, SA.”⁹⁵ 

Assault, bribery, and theft by police during arrest of suspected illegal migrants

The Immigration Act, as amended, states that any entry upon or search of any premises by an immigration official who has a search warrant must be conducted “with strict regard to decency and order, including – (a) a person’s right to, respect for, and the protection of, his or her dignity; (b) the right of a person to freedom and security; and (c) the right of a person to his or her personal privacy.”⁹⁶  The immigration legislation also makes it an offense for any civil servant to accept bribes,⁹⁷  and requires an immigration official who takes documents “or any other thing” from a suspected “illegal foreigner” to issue a receipt.⁹⁸  Human Rights Watch found violations of all these legislative provisions. 

At Makhado police station, a Zimbabwean man reported having been beaten by police when he was arrested:  “I stay in Chikota [a township in Makhado].  Early this morning [Saturday], police stopped us.  We were going to the market.  We buy and sell biscuits.  They beat us.  There were two police.  We were two.  They beat us in the bush.  They hit us with baton sticks.”⁹⁹ 

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 cellphone 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 policeman 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.¹⁰⁰ 

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.... The police took the man to the police station.  They just released him.  There was no case.  They knew it.  It cost the man R30 [US$4.26] to take the taxi back.¹⁰¹ 

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.”¹⁰²

As well as violating provisions of the Immigration Act, assault in the process of arrest violates the constitutional right to personal freedom and security, including the right to be free from all forms of violence from either public or private sources and the right not to be treated or punished in a cruel, inhuman or degrading way.¹⁰³  Similar protections exist in Article 7 of the ICCPR.¹⁰⁴

A 25-year-old Zimbabwean from Masvingo town talked to Human Rights Watch on the N1 highway, close to the Tshipise turn-off.  He was returning to Pretoria where he had held a building job since 2003.  He said he had been arrested five times in Johannesburg, and each time the police had treated him badly.  “They are asking for ID, for permit, and they want money from you.  If you have money, you give it to them.  Then they leave you.  If you don’t have money, they arrest you.  They start from R50 [US$7.10].  If you are not cooperative, they search you.  And if they find more, they’ll take it all.  If they search you and find no money, they arrest you.”  He was deported only once, in 2003.   Asked where he got arrested, he replied, “At work for me.”  As to how his employer, a black South African builder, responded to his arrests, he said: “He just kept quiet.  Usually the police know the employer and they won’t even say anything to him.”¹⁰⁵ 

A farmer, who was also a TAU official for the northern region of Limpopo province, had a dim view of police exploiting traffic violators to take bribes from undocumented migrants: “They stop trailers, cars on the road.  They look at lights, etc.  That’s the traffic police function.  They do it just to take money.  Many times they will let illegals through or even transport them.”¹⁰⁶

Detention exceeding 30 days without proper procedures

The Immigration Act, as amended, states that an “illegal foreigner” “may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days.”¹⁰⁷  The Immigration Regulations require an immigration officer intending to apply for the extension of the detention period to give written notice to the detainee of his or her intention within 20 days following the detainee’s arrest, provide the detainee an opportunity to make representations in this regard within three days of receiving the notice, and within 25 days following the arrest of the detainee, submit an application with the court clerk for the extension of the period of detention.¹⁰⁸  Human Rights Watch came across several cases in which this procedure was allegedly violated.

At Makhado (Louis Trichardt) police station, a Mozambican to whom Human Rights Watch spoke claimed he had been kept in the cell for about three months.  He said:

I was arrested three months back at my house in Chihota.  I bought a car.  I have the papers and receipts.  The only problem is I don’t have a passport.  But I have a passport number.  I am Mozambican.  The police don’t understand me.  The car is at the police station.  For a visa to come to South Africa, it’s very expensive.  Where can I get that money now?  My wife and child (who was born in South Africa) were also arrested this morning.  I saw when they walked past.  It was better for police to open a docket to go to court.¹⁰⁹ 

Human Rights Watch came across another detainee who claimed she had been detained for more than 30 days, apparently without any of the necessary legal procedures.  The 21-year-old Zimbabwean from Gweru had been self-employed as a hairdresser in Polokwane since 2004, but did not have a work permit.  She told us, “I was caught in Pietersburg [Polokwane] on March 3.  They [the police] said: ‘We are waiting for people from Home Affairs.’  Then we waited two weeks.  Home Affairs came and took our fingerprints.  We waited more time.  At least the conditions in the cell were fine.  I was only deported yesterday.”¹¹⁰  She had returned to South Africa the next day and had immediately been arrested in the Limpopo river; Human Rights Watch talked to her that same day.     

To attempt to verify these allegations of violations of the 30-day detention provision with police at Makhado and Musina police stations might have endangered the two undocumented foreigners.  For this reason, Human Rights Watch did not return to the police at these police stations for comment on these specific cases.   Violations of the 30-day detention provision have been widely reported on by other researchers.¹¹¹

Detention not in compliance with prescribed standards

The Immigration Act provides for “illegal foreigners” to be detained “in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights.”¹¹² The Immigration Regulations stipulate the minimum standards for accommodation, nutrition, and hygiene in detention.¹¹³  Every detainee must be provided with a bed, mattress, and at least one blanket.  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.  Each detainee must be provided with food served at defined intervals, with not more than 14 hours between the evening meal and breakfast the next day.  The DHA must provide the means for every detainee to keep his or her person, clothing, bedding and room clean and tidy.  Human Rights Watch found violations of the prescribed standards for conditions of detention at both Musina and Makhado police stations, and heard of other violations from detainees awaiting deportation.  

The violations of prescribed standards for detention contravene the constitution. Section 28(1)(g) of the constitution 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.  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.¹¹⁴  Section 35(2)(e) of the constitution stipulates that 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.”  International standards provide similar provisions for the minimum standards of conditions of detention.¹¹⁵

At Musina police station, often over 80 men, women, and children slept outside in a fenced area.  In bad weather the detainees are brought into an adjacent roofed area.  The men and women were evidently made to sleep separately.  Inside the outdoor “cell” there were a few toilets.  The only drinking water was outside the fenced area.  Each detainee was provided with a blanket and no mattress.  Human Rights Watch observed breakfast being served to detainees through the fence.  The evening meal was reportedly served around 4:30-5:00 p.m. and breakfast at about 9:30 a.m.—an interval between meals that exceeded the regulated maximum 14-hour limit.  Those who were brought to the police station after dinner and put on transport for deportation before breakfast missed two meals. 

I come from Bulawayo.  I am 29 years old.… I worked in a construction company… in Johannesburg.  I border jumped.  I have no work permit.… I’m still at that job. 

I got arrested last week on Saturday in Johannesburg.… There was a cross-fire. I was trying to run away.  Police said, “Okay, you’re not part of them.  But where’s your ID?”  They took me to Brixton station on Saturday.  At Brixton I was treated okay, except for not having food, except for Monday [when] they gave us four slices of bread.  On Monday, they released me and put me in Lindela.  At Lindela we ate nothing.… Then from Lindela we were deported the same day by train to Musina.… They [the police] didn’t give me time to collect my belongings at home [when he was arrested].  I arrived in Musina on Tuesday morning.  They deported us to Beitbridge from the Musina station. 

In Beitbridge police station [Zimbabwe], we were kept there 20 minutes.  We were told to go home.  There was no paper work.…  From there we tried to come back on Thursday and we were caught.  There were about 15 in our group.  Most in the group were those who were deported.… On Thursday around 1 a.m. we crossed the border.  From the border crossing point, we walked from 1 a.m. to 5 a.m.… We hired a car in Musina.  It was around 1 p.m. 

We were caught at Louis Trichardt [Makhado].  It was past 4 p.m.  Traffic cops stopped the car.  They asked the driver if he had papers.  The police just happened to arrive.  They asked for our papers.  We said we didn’t have.  They took us to Louis Trichardt station.  After some minutes, they wrote down our names and brought us here, Musina.  We’ve been here since yesterday.  We arrived in Musina yesterday at about six in the afternoon.  There was no food.… We have had no food this morning.  We slept on the ground.…

What they want is just for you to go home.  At least something should be done for people who work.  It is illegal, but we are working.  I’m now owed about R400 for the week I worked.  If I get back, maybe I can get that money.  I’m now being paid R80 per day.  South Africans are getting paid R150 per day and usually we are the ones who know the job.  Many people from Zimbabwe just want work. They really don’t care about conditions.  I got “O” levels in Zimbabwe.  The conditions I’m working in are not suitable for “O” levels.  South Africans are mostly uneducated.  The situation in Zimbabwe is terrible.  You’d rather die on the road here.  You can’t just sit there.

—Human Rights Watch interview with an undocumented Zimbabwean awaiting deportation, Musina police station, April 28, 2006

Human Rights Watch spoke to a 29-year-old Zimbabwean from Bulawayo who had been en route to Johannesburg in a taxi with about fifteen others with whom he had illegally crossed the border when he had been arrested in Makhado the previous day.  They had been taken first to Makhado (Louis Trichardt) police station and then to Musina police station, where they had arrived the previous evening at around six.  Dinner had already been served.  He told us, “Yesterday one person was allowed to go buy bread using our own money.  Those who had money contributed for everybody.  We had three loaves of bread amongst us.  We have had no food this morning.”¹¹⁶   This was the second time he was being deported in eight days.  The first time he had been arrested in Johannesburg, where he had held the same job in a construction company since 2000.  He had been arrested after trying to run away from a shoot-out.  Having cleared him of any involvement in the shooting incident, the police asked for his ID:  “They took me to Brixton police station on Saturday.  At Brixton I was treated okay, except for not having food, except for Monday [when] they gave us four slices of bread.  On Monday, they released me and put me in Lindela.”

Three Zimbabweans walking along the Tshipise road, hoping to get a ride to Johannesburg, told Human Rights Watch that they had been arrested by immigration officials at Beitbridge border post where they had entered with passports but without visas, which they said they could not afford.  They had been taken from the border post to Musina police station, where they claimed that they had spent three days without receiving any food.  They said that they had escaped in the night while the police were asleep.¹¹⁷

A police official at Makhado police station volunteered to Human Rights Watch that male and female detainees awaiting deportation were kept separately but that female detainees were kept together with people facing criminal charges:  “They sleep in the police cells, males and females separately.  The female ones are mixed with the criminals—we have only one cell for females.  The male illegals are kept separate from criminals.”¹¹⁸  It is a violation of the Immigration Regulations to keep detainees awaiting deportation with criminals. 

At Makhado police station, Human Rights Watch learned that there were two children in the cell with the adult men.  The two boys, age 15 and 17, were from Chipinge, Zimbabwe, and had been arrested on the road to Pretoria, where they lived with brothers who were working legally.¹¹⁹  The two children were evidently traveling unaccompanied by adults, and ought not to have been detained.

We were allowed into the sleeping quarters of the men awaiting deportation at Makhado police station.  Each person had only a blanket.  There were no mattresses. 

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.  Failure to enable migrants awaiting deportation to collect unpaid wages, savings, and personal belongings is viewed by migrants, and Human Rights Watch, as a serious injustice, if not necessarily a human rights violation.  Given that the police apparently permit undocumented migrants to collect their bank savings prior to deportation (see below), the case for allowing undocumented workers the opportunity to access their unpaid wages, savings not held in a bank, and personal property seems strong.  The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which the South African government has not signed, provides for the right of foreign workers (documented and undocumented) who get deported to be granted a reasonable opportunity before or after departure to settle any claims for wages and other entitlements and any pending liabilities,¹²⁰ and, upon termination of their stay in the state of employment, to be accorded the opportunity to transfer their earnings, savings, and personal effects and belongings.¹²¹

I am 21years old.  I come from Zaka, Masvingo province.  I was attending Morgenster Teacher’s College where I was doing a three-year course to teach primary school.  I have done two-and-a-half years and will finish in December 2006.  I came here to get money to pay fees to finish.  The fees went up.  Last term cost Z$16 million [US$158] per term.  This coming term will cost Z$50 million [US$495].¹²²  There are around three hundred students.  Most are going to drop out because of the fee escalation.  My father passed away in 2002.  My mother is not working.  My father left cattle.  We are sometimes selling cattle to get money. 

I came to South Africa on April 18.  I border jumped.  There are people there [at the Zimbabwe border] who do it as a business.  They are Zimbabweans.  They have three vans.  Malatchas—it’s the name of the business.  To go to Johannesburg, they charge about R800.    We were about 14 in the van.  Our uncle in Johannesburg paid when we got there.  They phoned my uncle from Beitbridge [Zimbabwe].  He agreed to pay.  It is common procedure.  We went by foot at night from Beitbridge [Zimbabwe] to Musina, going through farms.  We walked from about 11 p.m.  Around six in the morning they picked us up in the van. [The driver of the van has documents to cross the border legally.]  We arrived in Johannesburg at about eleven in the morning. 

We looked for work.  I worked for two weeks.  It was very unfortunate.  When I was on my way from work to my uncle’s place, I was taken there.  I was working at a construction company with a Zimbabwean friend with whom I’d crossed [the border].  We were not paid.  They were to pay us in a fortnight.  There were many Zimbabweans working at the construction company.  They did have workers’ permits.  The company comes to Beitbridge and finds one Zimbabwean person, who will search for others in Zimbabwe because these people here [South Africans] don’t want to work.  I observe these people are more of thieves than to work on their own. 

Then we were transported by train to Musina.  You feel uncomfortable [to be arrested and deported].  You’ve tried everything.  You’ve used money from others, and you won’t have anything.

—Human Rights Watch interview with an undocumented Zimbabwean migrant awaiting deportation, Musina police station, April 26, 2006

Human Rights Watch learned in interviews that the police permit undocumented migrants awaiting deportation the right to access their bank savings, even though migrants are not necessarily informed that they have this opportunity.   A Zimbabwean man awaiting deportation at Musina police station asked Human Rights Watch how he could access his savings in a bank account.  He said that he had a job in a shop in Roodepoort on the West Rand, had been arrested there and deported, had almost immediately re-entered South Africa illegally only to be arrested in Polokwane en route to Roodepoort, and eventually taken to Musina police station.  He had R500 (US$71) in a Standard Bank account. “Now I can’t access it,” he said.¹²³  Human Rights Watch referred his case to a police officer, who said, “We allow them to go to the ATM with an escort.”¹²⁴  However, this man had not been informed that he had the right to retrieve his bank savings.

Most foreign migrants, documented and undocumented, are unable to open bank accounts.  A Foreign Migration Studies Programme publication noted: 

Although current banking legislation technically prevents anyone except permanent residents and citizens from opening bank accounts, this policy may be waived on a discretionary level as often done with people in the country on temporary contracts.  Under pressure from lobbying groups, some banks have now begun extending services to refugees, but are still unwilling to open accounts for most other African immigrants who are unlikely to have the requisite thirteen digit ID number, foreign passport, or a formal employment contract.¹²⁵ 

Some foreign migrants are able to open bank accounts by fraudulently obtaining South African ID documents.¹²⁶  

A 21-year-old from Zaka district, Masvingo in Zimbabwe spoke to Human Rights Watch from the police “cell” at Musina police station.  He had been arrested in Johannesburg the previous day, and was only to be paid for his first month of work at the end of the month.  “I worked for two weeks.  It was very unfortunate when I was on my way from work to my uncle’s place, I was arrested.  I was working at a construction company with a Zimbabwean friend with whom I’d crossed [the border].  We were not paid.  They were to pay us in a fortnight.  My friend was also arrested.  He’s with me.”¹²⁷ 

The 29-year-old Zimbabwean from Bulawayo, awaiting deportation at Musina police station, had been working illegally since 2000 for a construction company in Johannesburg.  He got paid R80 (US$11.34) per day—slightly under half the daily pay rate of his South African co-workers, even though “usually we are the ones who know the job.”  The company owed him about R400 (US$57) for the week he had worked.  “If I get back, maybe I can get that money,” he remarked.¹²⁸  He noted that when he had been arrested following a shoot-out in Johannesburg, “They [the police] didn’t give me time to collect my belongings at home.”

From the Makhado (Louis Trichardt) police cell for detainees awaiting deportation, a Zimbabwean man said: “We were working.  Now Monday and Tuesday people will be paid and we won’t be paid.  I was working at the towing company in Louis Trichardt.  They were paying me R950 [US$135] per month.”¹²⁹ 

At Makhado police station, two of the approximately 20 people in the police cell said they had personal savings they were not given an opportunity to collect.  A Zimbabwean said he had saved R600 (US$85) from doing “piece jobs” such as gardening.¹³⁰  A Zimbabwean farm worker, who said he had a work permit, claimed to have R700 (US$99) at home.

Migrants’ vulnerability to arrest and deportation arising from government deficiencies in documenting corporate workers

The Immigration Act does not provide for the protection of migrants who, through no fault of their own, lose their legal status.   Consequently, migrants are vulnerable to arrest and deportation if they do not have valid emergency travel documents (ETDs) and temporary residence permits.  The government of Zimbabwe issues or renews Zimbabwean migrants’ ETDs; the South Africa government then issues or renews the migrants’ temporary residence permits.  Employers, the corporate permit holders, are responsible for ensuring that their corporate workers comply with the provisions of the corporate permit and the Immigration Act.  Corporate workers who have become illegal because of a government failure to properly document them in a timely fashion should not be subjected to early morning raids, arrests or deportation.  Human Rights Watch learned of migrant workers who had been subjected to police raids and even arrested and deported because the government of Zimbabwe had delayed renewing their ETDs and/or the government of South Africa had delayed renewing their temporary residence permits. 

A commercial farmer on the Limpopo border complained about the ineptitude of the governments of South Africa and Zimbabwe in issuing workers’ documentation in a timely fashion.  He said:

I’m working with two governments and they are very slow and bureaucratic.  Police and/or soldiers come and arrest our people because they don’t have permits.  But it’s not our fault.  They’re only focusing on us along the border.  We work out a rapport with the police commander stationed in this area, then we get another baboon coming along and he says something else.  They come and disturb our guys for three to four hours at night on the compound.  They have guns and the others don’t.  That’s the only thing.¹³¹ 

On a neighboring farm, there had been three police and/or military raids in the previous week, resulting in the deportation of a large number of workers.  The farm owner lamented:

 It’s no good explaining to the police or military the problems with the system.  The first lot took about 70 workers and another 120 were arrested in the subsequent two raids.  What then happens is that within a day-and-a-half 90 percent are all back again working.  You must realize I still owe them money.... Because they are getting arrested, a lot don’t even sleep in the houses provided.  A lot sleep outside where they are more safe.¹³² 

Migrants’ vulnerability to financial abuses by corporate permit holders

The Immigration Act does not provide any protection against employers, the corporate permit holders, charging migrant workers (including those who are not employed by them) a fee for obtaining the passport (or ETD) and temporary residence permit that they require to be legal.  The Act should make it an offense for employers to claim workers on the corporate permit who do not work for them and to charge workers anything other than the actual cost of the ETD for documenting them (see the section on Employment Laws, below).

Human Rights Watch learned that a corporate permit holder, who is a farmer as well as a labor contractor and labor consultant, had applied for a work permit for a Zimbabwean migrant who did not work for him, and passed on to the worker almost the full price of a corporate permit application.  As noted above, the cost of the application is independent of the number of corporate workers requested, and currently costs R1,520 (US$215); the corporate permit is valid for three years.  A Zimbabwean who works in a farm store near Tshipise, told Human Rights Watch: 

My boss has a farm.…  He doesn’t like South Africans.  I asked him for a permit.  At first he said it’s R2,000 [US$283].  I must pay half.  He’ll pay half.  Then he said no, and I had to deal for myself.  I’ve been working for two years there.  I’m staying with [name of labor contractor provided] contract workers on [name of farm supplied]....  There are many Zimbabweans there.  The Zimbabweans gave me the tip.  When I spoke to [name of labor contractor provided], he said he’d speak to my boss.  The following morning I told my boss that [name of labor contractor provided] told me he would get me a permit if I could pay R1,000 [US$142].  He got angry with me.  He said it’s my own funeral.  But when the military come, he’s hiding me.  Last year the army was tough, I tell you.  He had to hide me a lot.  If they caught me working there, he’d have to pay a lot.  Now I’m still paying R1,000 for the permit. So far I’ve paid him R500... I got the permit in November 2005.... [Name of labor contractor provided]—that man is very harsh.  If he hears about this, he’ll kill me.  The permit says the employer is [name of labor contractor provided] and the [worker’s] occupation is farm worker....  I come in and out using it.”¹³³