Documented and undocumented migrants from Zimbabwe are vulnerable to human rights abuses in South Africa and occupy an ambiguous space in the law with respect to certain rights guarantees. Their constitutional rights to personal freedom and security, conditions of detention which are consistent with human dignity, and fair labor practices are infringed upon by violations of immigration and employment laws and also deficiencies in these laws. Their inability to access adequate housing presents challenging issues of unsettled law, which will require further adjudication.
In the public sector, the police and immigration officials violate the lawful procedures for the arrest, detention, and deportation of foreign migrants in the Immigration Act. In the private sector, employers violate the prescribed basic conditions of employment for farm workers, including by not paying the minimum wage, making unlawful deductions from workers wages, and calculating workers wages based on productivity rather than the number of hours worked. Employers in the cities pay discriminatory wages to undocumented foreign migrants who do the same work as South African citizens. South African workers and private security officials discriminate and use violence against foreign workers, documented and undocumented. With respect to the right to social security, foreign migrants suffer de facto exclusion from workers compensation. Existing legislation discourages farmers from investing in farm workers housing and the government has no housing policy for farm workers, whether South African or foreign.
To address the human rights abuses of Zimbabwean foreign migrants, Human Rights Watch recommends that the government of South Africa enforce compliance with its immigration and employment laws, and amend the laws where necessary. Measures such as creating a hotline for foreign migrants to report human rights abuses by employers may complement the introduction of incentives for nongovernmental organizations to assist in monitoring and reporting on labor law violations by employers. Legal impediments to foreign migrants receiving workers compensation should be removed by legislative amendments. The government should acknowledge the legal disincentives for employers to provide housing for farm workersboth foreign migrants and nationalsand should devise a housing policy that will enable it to meet its constitutional obligations to progressively realize the provision of adequate housing for everyone within the understanding of the Constitutional Court. Finally, the government should address the specific situation of undocumented Zimbabwean migrants in South Africa through comprehensive rather than ad hoc measures that address their lack of status.