SummarySouth Africa’s vibrant and diverse economy is a powerful draw for Africans from other countries migrating in search of work. But the chance of earning a wage can come with a price: If undocumented, foreign migrants are liable to be arrested, detained, and deported in circumstances and under conditions that flout South Africa’s own laws. And as highlighted by the situation in Limpopo and Mpumalanga provinces, both documented and undocumented foreign farm workers may have their rights under South Africa’s basic employment law protections violated by employers in ways ranging from wage exploitation to uncompensated workplace injury, and from appalling housing conditions to workplace violence. Human Rights Watch has conducted research on the situation and experiences of migrant workers around the globe. Its research demonstrates that migrant workers, whether documented or undocumented, are particularly vulnerable to human rights abuses. Such abuses can be the result of many different factors including inadequate legal protections, illegal actions of unscrupulous employers or state officials, and lack of state capacity or political will to enforce legal protections and to hold abusive employers and officials to account. The focus of this report is principally the situation of Zimbabweans and Mozambicans in South Africa’s Limpopo and Mpumalanga provinces. Human Rights Watch believes that in South Africa migrants are regularly subject to human rights violations when they are deported, and that South Africa’s Immigration Act 2002 is routinely violated. Human Rights Watch researchers spoke with several witnesses who reported that when apprehending suspected undocumented foreigners, police, immigration, and military personnel had assaulted them and extorted money. In one case, a border military patrol failed to prevent the rape of an undocumented migrant whom they had arrested. Unaccompanied child migrants detained by South African officials are held in police cells with adults, contrary to both domestic and international standards relating to the detention of minors. Deportees allege that police on deportation trains sometimes assault and extort money from them, and have even thrown deportees—who believe they have bought their freedom—off moving trains to their death. Immigration policy provides that foreign migrants facing deportation should be allowed to collect their unpaid wages, savings, and personal possessions, but in practice this seldom occurs. On the farms of Limpopo and Mpumalanga provinces, many farmers who produce on a large-scale for export or for the domestic market use only documented workers. This leaves farm owners whose market contributions and labor forces are much smaller as the principal employers of undocumented workers. But documented or not, workers experience abuse and exploitation: While many large-scale farmers do adhere to the basic conditions of employment law, other farmers openly disregard the minimum wage, do not pay overtime, sick leave, or annual leave, and make unlawful deductions from workers’ wages. Existing legislation also creates disincentives for employers to provide housing for workers. Farm workers are still too often the victims of violence by employers and other farm staff, which the workers may be unwilling to report for fear of losing their jobs. Many employers do not claim state compensation to be passed on to farm workers who are injured at work, and when they do, the practice whereby payments can only be made into a bank account creates a barrier for foreign workers (who normally are unable to have accounts) to receive compensation settlements. Although the aspect of the report covering abuse in employment focuses on the human rights situation of foreign migrant workers on farms in Limpopo and Mpumalanga provinces, it also provides one of the first assessments of employment conditions on farms since the introduction of a minimum wage in 2003. Its findings also suggest that South African farm workers suffer a similar lack of legal protection as foreign farm workers regarding basic employment conditions. Failures by the government to ensure respect for international human rights law and South African immigration and employment laws, as well as certain deficiencies in those South African laws, result in the infringement of rights that migrants, documented and undocumented, should enjoy under international law and that are also protected by the Constitution of South Africa. These rights include, among others, the right to personal freedom, liberty and security, to appropriate conditions of detention, and to fair conditions or practices of work. The South African government should ensure that state officials abide by the procedures for arrest, detention, and deportation in its immigration law. The government should also create a system that permits migrants to report abuses of their human rights; require labor inspectors to produce public reports documenting the number of inspections they conduct, complaints they investigate, and compliance orders they issue to employers for violations of employment law; and investigate and punish state officials and employers who violate the law. The government should remove obstacles to enable migrant workers to access the workers’ compensation to which they are legally entitled. Human Rights Watch calls on the government of South Africa to offset practical disincentives for farmers to provide housing by developing a housing policy for farm workers. Human Rights Watch also calls on the government of South Africa to amend its immigration law to include enforceable rights for undocumented migrants to obtain their wages and possessions in the event that they are deported. The government is urged to become a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and to incorporate its provisions in domestic law. The report is based on research on Zimbabweans in Limpopo province in late April and early May 2006, and in Beitbridge, Zimbabwe, in October 2006, and research on Mozambicans in Mpumalanga and Limpopo provinces in September and October 2006. Historically, Zimbabweans have been the main migrant laborers on farms in the far north of Limpopo province and Mozambicans in southern Limpopo and the border areas of Mpumalanga. Our objective was to research the human rights situation of foreign migrants and ascertain the extent to which state officials were respecting the protections afforded to them in the immigration law and employers were complying with employment laws for farm workers, and in particular for foreign farm workers. In Limpopo, Human Rights Watch conducted 43 interviews with farmers and farm workers north of the Soutpansberg around Weipe and Tshipise, and south of the Soutpansberg around Levubu and Vivo; 31 interviews with immigration, military, and police officials, and Zimbabweans awaiting deportation at police stations in Makhado and Musina (the busiest detention center for Zimbabweans in Limpopo); 13 interviews with undocumented Zimbabweans, usually walking on the road en route to Johannesburg; and lawyers (invariably farmers themselves) who advise other farmers on how to comply with the immigration and employment laws. Two local nongovernmental organizations (NGOs), Nkuzi Development Association and Musina Legal Advice Office, provided research assistance. Human Rights Watch and Nkuzi Development Association also spent several days at the International Organization for Migration (IOM) reception center in Beitbridge in October 2006. The center provides humanitarian assistance for Zimbabweans deported from South Africa. At the center we talked to IOM staff members to learn more about the operation of the center and to 27 deportees (some of whom had been working not in Limpopo and Mpumalanga but in other locations in South Africa, and who are nevertheless featured in this report) to learn about their treatment during arrest, detention, and deportation, and their employment conditions if they had had jobs. In Mpumalanga Human Rights Watch worked with the Forced Migration Studies Programme of the University of the Witwatersrand and Nkuzi Development Association, and received assistance from TRAC-Mpumalanga and Masisukumeni Women’s Crisis Center. We interviewed in total over 100 people in Mpumalanga. Our interviewees included nine foreign nationals in detention at Komatipoort (the busiest detention center for Mozambicans in Mpumalanga); the only foreign national in detention at Nelspruit; and seven police and immigration officials at Nelspruit, Komatipoort, and Lebombo border post, several of whom were interviewed on multiple occasions. In Nelspruit we also interviewed the Mozambican Department of Labor’s sub-delegate, a Food and Agricultural Workers’ Union official, a labor inspector in the Department of Labour, and a staff member at the Mozambican recruitment agency Agencia Algos. We concentrated our interviews with 17 farmers or managers and 75 farm workers around Hoedspruit in southern Limpopo, and Hazyview, Kiepersol, and Komatipoort in eastern Mpumalanga. The names of farmers, farms, and foreign migrants, and on occasion of state officials, are not used, chiefly in the interests of protecting the security of individuals concerned. Many individuals were the victims or alleged victims of multiple human rights abuses by state officials or employers. By withholding names, the report does not, however, reveal the extent to which the same individuals are often the victims or alleged victims of multiple abuses. A variety of terms are used in legal and other documents to refer to foreign migrants who lack legal status. We use the terminology in South Africa’s immigration law, “illegal foreigner,” to refer to foreign migrants who enter South Africa without the documents required by the immigration law. Other foreign migrants, and in particular many Mozambicans, hold passports or emergency travel documents that give them the right to reside legally in South Africa. However, the right to be in the country is distinct from the right to work in the country. Mozambicans who are legally in South Africa in terms of the immigration law may be working illegally. Where relevant and known, the work and immigration status of foreign migrants is noted. Otherwise, we use the general term “undocumented migrants” to refer to foreign migrants who lack the legal permission to work or the legal permission to be in the country. |