SOCIAL PROTECTION FOR THE MIGRANT WORKER IN SOUTH AFRICA Felicia Snyman

SOCIAL PROTECTION FOR THE MIGRANT WORKER IN SOUTH AFRICA Felicia Snyman
SOCIAL PROTECTION FOR THE MIGRANT WORKER
IN SOUTH AFRICA
by
Felicia Snyman
Submitted in partial fulfilment of the degree
MASTER OF LAWS
in the
FACULTY OF LAW
at the
UNIVERSITY OF PRETORIA
Supervisor: Prof BPS van Eck
2013
Open Rubric
© University of Pretoria
SUMMARY
The purpose of this dissertation is to investigate the social protection, if any, afforded
to migrant workers in South Africa. To accomplish this purpose, the ambit of the
concept of ‘social protection’ is investigated and the legal status and different
categories of migrant workers are probed. The strands of social protection identified
and evaluated in the study are:

social assistance;

social insurance; and

labour security.
Each of the categories that define the social protection afforded to migrant workers is
examined. The ILO, UN and SADC have numerous standards and instruments
dedicated to the extension of social protection as well as the protection of migrant
workers globally. The Constitution of the Republic of South Africa, 1996,
acknowledges that international law must be considered when interpreting the Bill of
Rights. Furthermore, the courts must prefer a reasonable interpretation of legislation,
consistent with international law. Each component of social protection, as well as
migration, is regulated by different legislative instruments.
South Africa has legislative instruments dedicated to the regulation of social
assistance, social insurance and labour security. In South Africa, irregular migrants
receive limited social protection. The South African courts have played a positive role
in the development and broadening of the social protection afforded to migrant
workers, especially in the form of labour security. The limitations in the legislative
instruments that regulate labour security are being extended to give effect to the
courts’ decisions. Most of South Africa’s neighbouring countries have some form of
social protection, but other SADC countries can receive lessons from South Africa
with regard to the development of social protection, specifically in the form of labour
security.
i © University of Pretoria
FOREWORD
I would like to give thanks to my Heavenly Father for allowing me this wonderful
opportunity and blessing me with the necessary endurance, strength and knowledge
in life and providing me with dreams bigger than I could ever imagine. His grace has
been with me throughout this dissertation and nothing would have been possible
without His love, blessings and the promise of tomorrow.
My sincere and heartfelt thanks therefore go out to the following people:

My supervisor, Professor BPS Van Eck. Thank you for your guidance,
honesty, support and expert knowledge. I thank you for always having time for
me, assisting and motivating me through difficult times in writing this
dissertation. It has been an honour and a privilege to have you as my
supervisor.

My parents, Flip and Izabel Snyman, for giving me the wonderful opportunity
and privilege to be able to study and complete my studies with their loving
support, guidance, patience, understanding and so much more.

Vivienne Boshoff, who never allowed me to give up, listened to endless ideas
and stayed up with me without ever complaining.

Ansie Smit, who inspired me to enter the law profession and who always has
time and answers for me.

My sister, Nicolene Snyman, who always understands and provides me with
more than just support.

My friends, family and colleagues.
ii © University of Pretoria
DECLARATION OF AUTHENTICITY
UNIVERSITY OF PRETORIA
Student’s full names:
FELICIA SNYMAN
Student number:
27055214
Title:
SOCIAL PROTECTION FOR THE MIGRANT
WORKER IN SOUTH AFRICA
Declaration:
1.
I understand what plagiarism is and I am aware of the University’s policy in
this regard.
2.
I declare that this dissertation is my own, original work. Where other people’s
work (either a printed book, Internet source or any other source) was used, it
was properly acknowledged and referred to in accordance with the
requirements of the Faculty.
3.
I did not make use of another person’s work and submit it as my own.
SIGNATURE...............................................................................................................
iii © University of Pretoria
SOCIAL PROTECTION FOR THE MIGRANT WORKER
IN SOUTH AFRICA
TITLE PAGE
SUMMARY
i
FOREWORD
ii
DECLARATION
iii
TABLE OF CONTENTS
iv
CHAPTER 1: INTRODUCTION
1.1 BACKGROUND
1
1.2 RESEARCH QUESTIONS
5
1.3 SIGNIFICANCE OF THE STUDY
5
1.4 RESEARCH METHODOLOGY
7
1.5 PROPOSED STRUCTURE
8
CHAPTER 2: THE CONCEPT OF SOCIAL PROTECTION: INTERNATIONAL
STANDARDS AND THE CONSTITUTION
2.1 INTRODUCTION
11
2.2 THE CONCEPT OF SOCIAL PROTECTION
13
2.3 THE INTERNATIONAL LABOUR ORGANIZATION
16
2.3.1 Background
16
2.3.2 The ILO and Social Protection
18
2.3.3 The ILO and Social Security
19
2.3.4 The ILO and the UN regarding Labour Security
21
2.4 SOCIAL PROTECTION IN TERMS OF THE CONSTITUTION
24
2.4.1 Background
24
2.4.2 The Constitution
25
2.4.3 Social Protection
28
2.5 CONCLUSION
30
CHAPTER 3: SOCIAL PROTECTION: THE SOUTH AFRICAN REGULATORY
FRAMEWORK
3.1 INTRODUCTION
32
iv © University of Pretoria
3.2 LEGISLATIVE FRAMEWORK
34
3.2.1 Introduction
34
3.2.2 Social Assistance
34
3.2.3 Social Insurance
38
3.2.4 Labour Security
42
3.3 THE COURTS: EXTENDING THE RIGHT TO SOCIAL PROTECTION
47
3.3.1 Introduction
47
3.3.2 Socio-economic Rights
48
3.3.3 Labour Security
56
3.4 CONCLUSION
59
CHAPTER 4: THE LEGAL STATUS OF MIGRANT WORKERS
4.1 INTRODUCTION
62
4.2 THE CONCEPT OF MIGRATION
63
4.3 CATEGORIES OF MIGRANT WORKERS
65
4.4 THE REGULATION OF MIGRANTS
67
4.4.1 International Instruments
67
4.4.2 National Instruments
73
4.4.2.1 Introduction
73
4.4.2.2 The Aliens Control Act and Refugees Act
74
4.4.2.3 The White Paper on International Migration
76
4.4.2.4 The Immigration Act
77
4.5 CONCLUSION
80
CHAPTER 5: REGIONAL STANDARDS AND A COMPARATIVE PERSPECTIVE
5.1 INTRODUCTION
83
5.2 THE STRUCTURE OF SADC
85
5.3 THE SADC PERSPECTIVE ON SOCIAL PROTECTION AND MIGRATION
86
5.4 COUNTRIES IN THE SADC REGION
91
5.4.1 Introduction
91
5.4.2 Namibia
92
5.4.3 Botswana
95
5.4.4 Mozambique
98
5.4.5 Lesotho
103
v © University of Pretoria
5.4.6 Swaziland
105
5.4.7 Mauritius
107
5.5 CONCLUSION
109
CHAPTER 6: CONCLUSION
6.1 INTRODUCTION
112
6.2 CONCLUDING REMARKS
114
6.2.1 International Organizations
114
6.2.2 SADC and Neighbouring Countries
116
6.3 SOUTH AFRICA: LIVING INSIDE THE PROBLEM
118
6.3.1 Introduction
118
6.3.2 Socio-economic Rights
119
6.3.3 Labour Security
121
6.3.4 Migration
122
6.4 RECOMMENDATIONS AND STRATEGIES
123
6.4.1 Social Grants
123
6.4.2 Law Reform
125
BIBLIOGRAPHY
128
vi © University of Pretoria
CHAPTER 1
INTRODUCTION
1.1
BACKGROUND
1
1.2
RESEARCH QUESTIONS
5
1.3
SIGNIFICANCE OF THE STUDY
5
1.4
RESEARCH METHODOLOGY
7
1.5
PROPOSED STRUCTURE
8
1.1
BACKGROUND
The terms associated with the concept of social protection are, among other things,
social security, social assistance and social insurance.1 The need for social
protection emanated from portions of the population who could not provide for
themselves and could not count on their governments for assistance.2 Numerous
factors had an impact on societies and their views towards the welfare of their
people.3 In many instances, individuals could no longer care for themselves when
they fell sick or became too old to work for their own wages. Their income was too
small to save up for the years during which they could not look after themselves.4
The First and Second World Wars changed the face of the world, and by the 1960’s
some of the more developed countries had introduced a number of social protection
measures.5 The so-called welfare system’s6 responsibilities expanded and benefits
were distributed to people for, among other things, retirement, medical care, injury
and unemployment. This system’s challenges are to develop suitable and
incorporated strategies that include the whole population and stop the economic and
social downgrading of those people living in situations such as poverty or lifethreatening disease, as well as attending to the distribution of the services provided.7
1
2
3
4
5
6
7
Olivier et al (2003) 26. The broader term ‘social protection’ will be used throughout the course of
this dissertation.
Strydom et al (2006) 1.
An example of this is the Industrial Revolution in the United Kingdom.
Strydom et al (2006) 1; Olivier et al (2003) 26.
Strydom et al (2006) 3.
Harris (2000) 5 says that “[a] state [that] accepts responsibility for welfare and (via legislation and
other constitutional means) provides mechanisms – institutions and procedures – for the delivery of
the services and other forms of provision required to meet basic needs.”
Richter (2006) SAJHR 197.
1 © University of Pretoria
The development of social protection can be categorized by two broadly diverse
approaches, namely the Bismarckian and Beveridge systems.8 In the Bismarckian
system, public schemes are developed from employee-employer contributions. The
inference is that this system is insurance-based. In Europe, the Beveridge system
places the emphasis on minimum-income protection, with these benefits provided as
part of the state budget. Traces of these approaches can be found in early schemes,
and owing to modern developments, a mixed system has been introduced in various
countries.
The definition of social protection differs from one organization and/or country to
another. The International Labour Organization (ILO) defines the concept as “the
protection which society provides for its members, through a series of public
measures against economic and social distress.”9 Overall, the aim of social
protection is to reduce the risks that communities face by increasing opportunities
and the competence of individuals to provide for themselves and, to some extent, for
their dependants.10
Social protection is recognized as a human right by the ILO and the United Nations
(UN). The ILO played an important role in the development of social protection and
adopted a number of conventions and recommendations to this end.11 During the
International Labour Conference held in 1952, numerous parties came to an
agreement that concluded that social protection has an important place on the
agenda of the ILO.12 Furthermore, the UN adopted the International Covenant on
Economic, Social and Cultural Rights in 1966.13
In South Africa, as the time of racial discrimination was coming to an end, the
concept of social security was being reformed.14 Social protection has been
8
Olivier et al (2003) 29.
Strydom et al (2006) 4. See Chapter 2.2.2.
10
Mpedi and Govindjee (2009) Obiter 775.
11
Strydom et al (2006) 3.
12
Van Ginneken (2003) Int Lab Rev 277. The Social Security (Minimum Standards) Convention, 102
of 1952, was adopted by the ILO in 1952. By 2006, 40 member states had ratified this Convention.
See also Strydom et al (2006) 4. See Chapter 2.2.3.3.
13
Van Ginneken (2003) Int Lab Rev 277. See Chapter 2.2.3.4.
14
Strydom et al (2006) 18. However, to date most of the conventions have not been ratified by the
South African government.
9
2 © University of Pretoria
perceived in a whole new light since the introduction of section 27 of the Constitution
of the Republic of South Africa, 1996.15 This section states that everyone has the
right to access to social security,16 which is one of the categories of social
protection.17 Furthermore, it indicates that a state must take reasonable legislative
measures, within its available resources, to improve everyone’s social security
rights.18 However, this section was only adopted after several historic events and
developments in the country. The Constitution was developed to provide a balance
between the rights entrenched in the Constitution and the enforcement of these
rights.
In South Africa, social protection can be divided into a number of categories, and
these should be determined according to the intended aims of the initiative.19 The
main strands of social protection in South Africa are to be found in social assistance,
social insurance20 and labour security.21 Social assistance, also known as socialwelfare, can be divided into two categories. The first is means-tested social
assistance, where people need to qualify for assistance. Examples of grants under
this category are disability grants and child grants.22 The second category relates to
national social assistance, and is based on the assumption that the government
should aim to provide a minimum standard of living for all people within the borders
of the country.23
The Social Assistance Act24 (SAA) is the primary legislation in South Africa for
regulating the provision and implementation of social assistance. The SAA makes
provisions for various forms of social grants, which are mainly funded through
taxation. Booysen notes that:
“[S]outh Africa has a well-developed system of social security and the reach
of the social grant safety net has expanded rapidly over the past five years.”25
15
Dekker (2000) Law, Dem & Dev 1.
S 27(1)(c). Hereinafter the Constitution.
17
See Chapter 2.2.
18
S 27(2).
19
Olivier et al (2003) 30.
20
Strydom et al (2006) 6.
21
The definition of social protection will be dealt with comprehensively in Chapter 2.2.2.
22
Ss 4 – 13 of the Social Assistance Act 13 of 2004. See also Strydom et al (2006) 8.
23
Strydom et al (2006) 8.
24
13 of 2004.
25
Booysen (2004) JSA HIV 45.
16
3 © University of Pretoria
Contributions to social insurance are usually made by the employer and/or the
employee, and whether this places this form of social assistance beyond the scope
of the protection provided to migrant workers will be examined.26
Social protection typically starts in the workplace, where workers spend the majority
of their working lives.27 Social protection is often limited to the existence of a contract
of employment28 and/or possession of citizenship of the host country.29 These
limitations have been considered by the South African courts30 and it has been held
that the Constitution has the effect of extending the scope of the protection that the
state must provide to non-citizens or those with no valid contract of employment.31
South Africa is also one of the members of SADC. The SADC countries are all
connected, whether it is for economic purposes or by a deadly disease.32 The reality
is that they need to stand together to help those individuals who are less fortunate.
As will be indicated through the course of this dissertation, numerous writers,
international standards, legislative instruments and courts have acknowledged that
migrant workers are a vulnerable group around the world.33
Migration is a factor that creates both a number of problems and opportunities in the
SADC region, as migrant workers flow from one country to another in search of
better living standards. Each SADC country has developed its own legislative
26
Olivier et al (2003) 9 – 10.
Recommendation Concerning HIV and AIDS and the World of Work, 2010 (No. 200) International
Labour Office, Geneva.
28
See the definition of ‘employee’ as contained in s 1 of the Unemployment Insurance Act and s 1 of
the Compensation for Occupational Injuries and Diseases Act, as well as the discussion in Van
Niekerk et al (2012) 70 – 73.
29
See the scope of application of the Social Assistance Act 13 of 2004 as provided for in s 2(1).
30
In Khosa v Minister of Social Development; Mahlaule & Others v The Minister of Social
Development & Others 2004 (6) SA 505 (CC) the court stated that the rights protected by s 27 could
be extended to persons with refugee status. In the abovementioned cases, the Constitutional Court
emphasised the justifiability and inter-relatedness of the rights contained in s 27. See also Becker
and Olivier (2008) 56.
31
Discovery Health Ltd v CCMA 2008 ILJ 1480 (LC); Government of the Republic of South Africa &
others v Grootboom and others 2001 (1) SA 46 (CC). These cases will be discussed in Chapter
3.3.3.
32
As stated by Olivier and Mpedi (2004) JJS 12 “[t]he SADC region is one of the poorest regions in
the world. The SADC countries share common problems. They share the experience of being
confronted by, inter alia, high levels of unemployment and under-employment, poverty, and the
HIV/AIDS pandemic.”
33
See Chapters 2 and 3. For example, see the ILO standards available on
http://www.ilo.org/global/about-the-ilo/decent-work-agenda/social-protection/lang--en/index.htm
visited on 2012/06/19 and Olivier (2011) Part 1 SADC Law J.
27
4 © University of Pretoria
instruments regarding social protection, migration and labour, which are unique to
their own systems of law and the needs of their community members.
1.2
RESEARCH QUESTIONS
This dissertation will aim to evaluate the current position of the migrant worker in
South Africa with regard to the social protection available to them. The focus of this
study is not merely to criticize the existing state of social protection among residents
in their respective countries, but to evaluate the South African system and consider
whether or not the regulatory framework is sufficient. The different questions that will
be answered through the course of this dissertation are:
 What is the appropriate content of the definition of social protection for the
purposes of this research?
 To what extent do international norms provide social protection?
 Does South Africa have a constitutional duty to follow the international norms
with regard to social protection?
 What is South Africa’s legal framework?
 To what extent do policymakers and courts expand the concept of social
protection?
 What are the different legal statuses that migrants can hold and are these
aligned with social protection?
 To what extent does SADC regulate social protection?
 Can lessons be learned from neighbouring countries?
In addressing these questions, the main focus will be on the ambit of social
protection in South Africa. This focus will include the different strands of the social
protection system of South Africa, the relevant legislative instruments and the
willingness of the courts to evaluate this concept with regard to migrants. Attention
will be given to the position of the ILO, UN and SADC on the concept of social
protection and migration. A comparative analysis of some of the SADC countries and
the instruments ratified by these jurisdictions will be carried out by the study.
1.3
SIGNIFICANCE OF THE STUDY
According to Statistics South Africa (Stats SA),34 “migration is the most difficult to
define and least understood component of population change.”35 An estimated 1
million international migrants are expected to enter the country between 2011 and
34
35
Available on http://www.statssa.gov.za/publications/findpublication.asp visited on 2013/08/14.
Statistical release P0351.4 Documented immigrants in South Africa (2012) 8.
5 © University of Pretoria
2015.36 Stats SA aimed to monitor the number of permanent and temporary permits
issued to migrants in South Africa, and it was found that a significant number37 of
temporary residence permits were issued in accordance with the Immigration Act38
in 2012, 23.5% of which were work permits. Only 1 283 permanent residence
permits were issued in 2012. Work permits were once again the most prevalent of
the permits issued.39
Both skilled and unskilled workers cross the South African border in search of
employment in any form to provide for themselves and their dependants.
Unfortunately there are no accurate statistics available to indicate the number of
irregular migrants in South Africa. Migrant workers form part of most countries’
communities and have needs. Health care and basic education are just some of the
services people need to establish a basic living standard for themselves. They
render services and need labour protection.
Most human needs could be categorized under social protection. Migrant workers,
especially in the mining sector in South Africa, are part of the South African
community. The study’s coverage of social protection for migrant workers in South
Africa is significant, owing to the fact that a large number of the migrants in South
Africa are from the African continent.40
International organizations place emphasis on the development of social protection
and the concept of migration. Social protection in South Africa must be evaluated
and the legislative instruments should acknowledge the existence of migrant
workers, while still being reasonable about the duties of the country towards migrant
workers.
36
Gauteng and the Western Cape receive the highest number of migrants within the country, both
national and international. Statistical release P0302 Mid-year population estimates (2013) 5 and
11.
37
A total of 141 550 temporary permits were processed. Statistical release P0351.4 Documented
immigrants in South Africa (2012) 14.
38
13 of 2002.
39
Work permits made up 34,4 % of the permanent residence permits analyzed and issued.
40
Zimbabweans had the most processed temporary and permanent residence permits in South Africa
in 2012. See Statistical release P0351.4 Documented immigrants in South Africa (2012) 14 and 29.
6 © University of Pretoria
1.4
RESEARCH METHODOLOGY
This study will follow a comparative and analytical approach to the social protection,
if any, available to the migrant worker in South Africa. A comparison will be drawn
between South Africa and other SADC countries. The study will focus on an analysis
of social protection and the impact or possible negative effect the inclusion of this
group may have on social protection at large. Both national and international
standards and obligations will be dealt with.
A specific referencing method will be followed. The complete reference to each
book, journal article and international instrument will be given in the bibliography at
the end of the dissertation, after Chapter 6. There will also be a table in which the
shortened reference that will be used in the footnotes can be found. When referring
to legislation, the full title of the act or instrument will be stated in the text, and any
abbreviations to be used will be given.
Social protection does not have a concrete definition. However, it includes concepts
such as social security, social assistance, social insurance and labour security.
These concepts will be investigated and context will be given to the terms. Migrant
workers in South Africa will be the focus of this dissertation. The concept of ‘workers’
used here will include not only the general accepted definition of workers, but also
employees as defined by various legislative instruments.41 As the meaning of
‘employee’ used follows South African legislation, the concept of a ‘worker’ dealt with
here will not include independent contractors. Therefore, independent contractors
41
S 1 of the UIA defines an ‘employee’ as “any natural person who receives remuneration or to whom
remuneration accrues in respect of services rendered or to be rendered by that person, but
excludes any independent contractor.” S 1 of the COIDA defines the term as “‘a person who has
entered into or works under a contract of service or of apprenticeship or learnership, with an
employer, whether the contract is express or implied, oral or in writing and whether the
remuneration is calculated by time or work done, or is in cash or in kind, and includes: (a) a casual
employee employed for the purposes of the employer’s business; (b) a director or member of a
body corporate who has entered into a contract of service or of apprenticeship or learnership with
the body corporate, in so far as he acts within the scope of his employment in terms of such
contract; (c) a person provided by a labour broker against payment to a client for the rendering of
service or the performance of work, and for which service or work such person is paid by the labour
broker; (d) in the case of a deceased employee, his dependent, and in the case of an employee
who is a person under disability, a curator acting on behalf of the employee.” According to s 213 of
the LRA ‘employee’ means “(a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assist in carrying on or conducting the business of an
employer.”
7 © University of Pretoria
will form no part of this dissertation. The status of being a worker is not limited to
employees or dependent on the existence of employment contracts. Both formal and
informal workers will be examined. Migrant children are another group of individuals
who usually fall within the scope of vulnerable people. Large numbers of migrant
children flow into the country, whether it is with their migrant parents or by
themselves, in the search for work. This category of migrants will not form part of this
analysis.
The definition of ‘migrants’ developed by various international and national
instruments will be used throughout this study. It will include migrants of all genders
and races.42 However, only migrants who work within the borders of South Africa will
be examined comprehensively. The migrants’ spouses and independents will be
excluded. Only permanent and temporary residents, refugees, asylum-seekers and
irregular migrants will be the focus of this study.
When dealing with South African migration law there are a number of significant
legislative instruments that are important to evaluate.43 It is acknowledged that the
Citizenship Act 88 of 1995 can be considered a part of migration policy in South
Africa, as it regulates citizenship.44 However, despite this acknowledgement, it will
not be included in the scope of this dissertation.
In addition, informal social security forms part of the definition of social protection,
but will not be covered in detail in this dissertation. Throughout the dissertation,
reference will be made to informal social security and the role it plays where
applicable, but it will only be covered briefly.
1.5
PROPOSED STRUCTURE
This study will consist of six chapters. The chapter division will be as follows:
In Chapter 1, the introduction, the background to the problem is provided and the
research questions are specified. The relevant terminology and necessary
42
The definition of migrants, migration and categories of migrants will be dealt with comprehensively
in Chapter 4.
43
These will be discussed comprehensively in Chapter 4.
44
Statistical release P0351.4 Documented immigrants in South Africa (2012) 8.
8 © University of Pretoria
restrictions on the topic are dealt with and explained. The referencing method that is
used throughout the dissertation is also explained.
In Chapter 2, the focus falls on the definition of social protection for the purposes of
this research. In addition to this, the international norms pertaining to social
protection established by the ILO are explored. This includes a discussion of the
functions of the ILO and the instruments provided by the ILO, which could have a
positive impact on the problem if ratified and implemented by the relevant countries.
The Constitution is the primary piece of legislation in South Africa and the supreme
law of the country. All legislation must be consistent with it. The socio-economic
rights entrenched in the Constitution are evaluated. The question is posed whether
there is a constitutional obligation on South Africa to adhere to these norms.
In Chapter 3, South African legislative instruments concerning social protection and
labour law are examined. Case law that changed or extended this right to other
vulnerable groups is analysed. This includes relevant legislation and court cases. It
will be determined whether the government is providing adequate social protection
according to section 27 of the Constitution. The Constitution is dealt with in Chapter
2 and is only mentioned here where specific socio-economic rights are considered or
extended.
In Chapter 4, the concept of migration as defined by international and national
organizations is acknowledged. The different categories of migrants that form part of
this study are defined in this chapter. The ILO and UN instruments and standards
that did not form part of the previous chapters (specifically regarding migration) are
evaluated. This chapter examines the South African legislation applicable to
migration law in particular and whether or not this migration law is in line with other
fields of law.
Chapter 5 is a comparative analysis of some of the other countries in the SADC
region regarding their social protection for migrants. In the SADC region migrants
form one of the largest groups of people that need protection, and there are
numerous declarations, models and protocols dedicated to these individuals’ wellbeing. South Africa’s neighbouring countries are affected by the same problems that
9 © University of Pretoria
the South African government has to face on a daily basis. The pros and cons of
each country’s model of social protection are examined. Case studies with an impact
on the development of the social protection of migrant workers in these countries are
also reviewed. This chapter also focuses on the bilateral agreements concluded
between the SADC countries and South Africa, as well as the effect the agreements
have on the people in the countries involved.
In Chapter 6, the conclusion, concluding remarks about each chapter and the
research
question
in
general
are
made.
Furthermore,
strategies
and
recommendations regarding law reforms and the implementation of legislative
instruments are given.
10 © University of Pretoria
CHAPTER 2
THE CONCEPT OF SOCIAL PROTECTION: INTERNATIONAL STANDARDS AND
THE CONSTITUTION
2.1
INTRODUCTION
11
2.2
THE CONCEPT OF SOCIAL PROTECTION
13
2.3
THE INTERNATIONAL LABOUR ORGANIZATION
16
2.4
2.3.1 Background
16
2.3.2 The ILO and Social Protection
18
2.3.3 The ILO and Social Security
19
2.3.4 The ILO and the UN regarding Labour Security
21
SOCIAL PROTECTION IN TERMS OF THE CONSTITUTION
24
2.4.1 Background
24
2.4.2 The Constitution
25
2.4.3 Social Protection
28
2.5
CONCLUSION
2.1
INTRODUCTION
30
The Constitution of the Republic of South Africa, 1996 (the Constitution)
acknowledges international standards and the implementation of these standards in
the South African legal system.1 The International Labour Organization (ILO) is an
important standards-generating body and it establishes norms that deal with
workers, whether they are citizens or migrants.2 This organization also makes no
distinction between regular or irregular workers.3 The ILO is an international
1
2
3
S 39(1)(b) as well as ss 232 and 233 of the Constitution state that international law must be
considered while interpreting the Bill of Rights and that an interpretation of any legislation that is
consistent with international law should be preferred.
In South African National Defence Union v Minister of Defence & another 1999 (6) BCLR 615; (1999
(4) SA 469 (CC) the Constitutional Court said “[s]ection 39 of the Constitution provides that, when a
court is interpreting Chapter 2 of the Constitution, it must consider international law. In my view, the
conventions and recommendations of the International Labour Organisation (‘the ILO’), one of the
oldest existing international organisations, are important resources for consider the meaning and
scope of ‘worker’ as used in section 23 of the Constitution.”
The terms used for migrants were ‘legal and illegal migrants’. However, this has been criticized as
having negative connotations. Therefore ‘irregular’ will be the term used to describe migrants who
are in the country without the necessary authority according to the South African immigration law.
This refers to the unauthorized status of migrants in the country. See Dupper (2007) Stell LJ 220.
At223, the author states that “[w]ithin the category of non-nationals or non-citizens, a distinction can
11 © University of Pretoria
organization with specific objectives and goals in every sector of the workplace.4 In
the mission and objectives of the ILO it is stated that “in support of its goals, the ILO
offers unmatched expertise and knowledge about the world of work, acquired over
more than 90 years of responding to the needs of people everywhere for decent
work, livelihoods and dignity.”5
The ILO has played an important role in enhancing the principles of social protection
in member countries.6 There are numerous standards dedicated to the development,
protection and administration of social protection. Some of these standards apply
directly to migrant workers. Social protection is recognized as a wider concept than
the term social security.7 The term ‘social protection’, together with any other
relevant terms, will be defined in the next section of this chapter.
In South Africa, the term ‘social protection’ is still being developed and interpreted by
scholars and the South African courts. Courts play a significant role in the
development of the meaning and context of social protection by putting the concept
into practice and stating how it should be implemented.8 Cases before the court
serve as examples and allow us to associate this concept with human beings and
their human rights.
In this chapter, firstly, the term ‘social protection’, as defined by different
organizations, will be evaluated. This definition will be used through the course of
this dissertation. Following this, the ILO, as well as its standards with regard to some
be drawn between migrants legally authorised to be in the country (so called ‘regular’ migrants) and
those who enter or work in countries without legal authorisation (so-called ’irregular’ migrants). For
many years, the term ‘illegal’ was attributed to migrants falling into the last category, but this
characterization has been criticized as normative and conveying the idea of criminality”.
4
In terms of the ILO’s “decent work agenda”, it has four strategic objectives, namely to: promote and
realize standards and fundamental principles and rights at work; create greater opportunities for
women and men to decent employment and income; enhance the coverage and effectiveness of
social protection for all; and strengthen tripartismand social dialogue. Available on
http://www.ilo.org/global/about-the-ilo/mission-and-objectives/lang--en/index.htm,
visited
on
2012/10/23.
5
Available on http://www.ilo.org/global/about-the-ilo/mission-and-objectives/lang--en/index.htm,
visited on 2012/10/23.
6
Van Ginneken (2003) Int Lab Rev 277. In 2001 at the International Labour Conference it was stated
that the highest priority is the development of policies to extend social protection to those who have
none.
7
Kapindu (2011) AHRLJ 95.
8
In the following cases: Government of the Republic of South Africa other v Grootboom and others
2001 (1) SA 46 (CC) and Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 756 (CC).
12 © University of Pretoria
elements of social protection, will be evaluated. Furthermore, the Constitution forms
an essential part of the country’s legislative framework and the constitutional rights
associated with social protection will be examined. Finally, a conclusion will be
drawn regarding the concept of social protection.
2.2
THE CONCEPT OF SOCIAL PROTECTION
The concept of social protection has been defined by numerous individuals,
organizations and legislators. The ILO defines ‘social protection’ as:
“[t]he set of public measures that a society provides for its members to protect
them against economic and social distress that would be caused by the
absence or a substantial reduction of income from work as a result of various
contingencies (sickness, maternity, employment injury, unemployment,
invalidity, old age, and death of the breadwinner); the provision of health care;
and, the provision of benefits for families with children”.9
The above definition from the ILO sounds much like the concept of social security. A
wider and more modern definition has recently been developed by the Asian
Development Bank (ADB). According to the ADB’s definition,10‘social protection’ is a
combination of guiding principles and plans developed to lessen poverty and
vulnerability by promoting competent labour markets and limiting individuals’
exposure to risk, ensuring that they can protect themselves against loss of income
by promoting their capability to fend for themselves.11
In South Africa, the so-called Taylor Report uses the term ‘comprehensive social
protection’. According to this definition, social protection12 makes an attempt to offer
9
García and Gruat (2003) 13. See also ILO World Labour Report: Income Security and Social
Protection in a Changing World (2000) 29; ILO Principles of Social Security (1998) 8.
10
Asian Development Bank “Social Protection: Reducing Risks, Increasing Opportunities” – Available
on http://www.adb.org/SocialProtection/default.asp, visited on 2012/06/04.
11
Mpedi and Govindjee (2009) Obiter775. Some of the ILO standards are applicable in all of the
social protection branches, such as the Equality of Treatment (Social Security) Convention 118 of
1962. According to Brand and Heyns(2005) 227 this convention guarantees the payments of longterm benefits even if the worker resides aboard.
12
See Committee of Inquiry Into a Comprehensive Social Security System Transforming the Present
– Protecting the Future (Draft Consolidated Report) March 2002, 41. This session was chaired by
Prof Viviene Taylor. The report stated that “[c]omprehensive social protection for South Africa seeks
to provide the basic means for all people living in the country to effectively participate and advance
in social and economic life, and in turn to contribute to social and economic development.
Comprehensive social protection is broader than the traditional concept of social security, and
incorporates developmental strategies and programmes designed to ensure, collectively, at least a
minimum acceptable living standard for all citizens. It embraces the traditional measures of social
insurance, social assistance and social services, but goes beyond that to focus on causality through
13 © University of Pretoria
the essential resources to make it possible for people living in South Africa to take
part and proceed in the social and economic sectors. Through this, South African
residents may also add to the development of social and economic standards. The
report confirms that social protection is a wide concept, as it is dedicated to
incorporating approaches and programmes to guarantee bare minimum living
standards and encourage participation in the labour market by all citizens. This
includes initiatives taken by the state to ensure equal social protection for people in
South Africa.13
When considering the three definitions mentioned, some similarities and prominent
differences can
be
observed. The
definitions all
contain
some
kind
of
acknowledgement of the need for the protection for individuals who cannot provide
for themselves – whether economically or socially. They also refer to a person’s
capacity to work and earn a decent living. The differences are that not all of the
definitions include labour security, and there are specific programs referenced in
each definition that are not the same in every country or organization.
Social protection extends beyond aspects that traditionally fall under the term ‘social
security’. In South Africa, social security14 is referred to as a concept with more than
one aspect.15 It includes, among other things, social assistance, social insurance16
and a selection of private and public measures that provide benefits in the event of
an individual’s earning capacity ceasing or being interrupted.17 These events can
include ill health, disability, old age or unemployment.
an integrated policy approach including many of the developmental initiatives undertaken by the
state.”
13
Kapindu (2011) AHRLJ 98.
14
In the White Paper for Social Welfare, ‘social security’ was defined as “[t]he policies, which ensure
that all people have adequate economic and social protection during unemployment, ill health,
maternity, child rearing, disability and old age, etc, by means of contributory and non-contributory
schemes providing for their basic needs.” See Chapter 7 of GN 1108 in GG 18166 of August 1997.
15
Tshoose (2010) PELJ 410.
16
Dupper (2007) Stell LR 224 and Fombat (2013) AJICL 3 the author also refers to the notions of
“indirect” and “informal” social security that are particularly relevant in the African context. The first
term refers to the provision by government of food, housing, education and energy that are not part
of the traditional social security schemes. The latter term relates to a safetynet provided by
members of a social group such as a family or community.
17
Olivier et al (2004) 23 – 24.
14 © University of Pretoria
The Social Assistance Act18 defines ‘social assistance’19 as a social grant that
includes relief of social distress. ‘Social insurance’, on the other hand, usually refers
to specific schemes in which workers, as well as their employers, make contributions
to some form of insurance fund. These schemes are employment-based and
normally include retirement schemes, workmen’s compensation, health insurance,
unemployment insurance and the Road Accident Fund.20
It is clear that the definitions of social protection discussed above are wide enough to
cover the main elements of social security, namely social assistance and social
insurance. The distinction between social insurance and social assistance is
predominantly noteworthy in the context of access to social security for migrants.21
However, apart from these strands, it is argued that social protection is wide enough
to include the concept of labour security in its definition. Social protection typically
starts in the workplace, where workers spend the majority of their working lives.22
The majority of the social insurance systems are employment-based, which indicates
that social protection in that form is dependent on labour security.
Informal social security should also be included in the definition of the concept of
social protection. Dekker argues that it has only recently been identified as an
element of protection under social security.23 Migrants are mostly situated in the
informal sector. Dekker defines ‘informal social security’ as provisions relying on
“principles of reciprocity and solidarity”. She states that this form of social protection
does not only rely on financial transfers, but provides support unique to a particular
group of individuals where this group has something in common.24 Another more
elaborate definition of informal social security indicates that it is a self-developed
safety net for a specific group of individuals in a society that includes, but is not
limited to, bonds such as family, friends or nationality.25
18
13 of 2004.
S 1 of the SAA.
20
Millard (2008) AHRLJ 40.
21
Dupper (2007) Stell LJ 225.
22
Recommendation Concerning HIV and AIDS and the World of Work, 2010 (No. 200) International
Labour Office, Geneva. Also referred to in Chapter 1 of this dissertation.
23
Dekker (2005) 6.
24
Ibid.
25
Kapindu (2011) AHRLJ 96 referring to Olivier et al “Formulating an integrated social security
response: Perspectives on developing links between informal and formal social security in the
19
15 © University of Pretoria
Informal social security will not form part of this study, even though it is still included
in the definition of social protection. Therefore, a combination of the comprehensive
definitions of the different organizations will be used. It will include: social assistance;
social insurance; and labour security. In the following paragraphs the ILO and the
Constitution of the Republic of South Africa will be examined with regard to social
protection.
2.3
THE INTERNATIONAL LABOUR ORGANIZATION
2.3.1 Background
The ILO was established in 1919 by the Treaty of Versailles. South Africa joined the
ILO on 26 May 1994.26 The ILO is divided into three main bodies: the International
Labour Conference; the Governing Body; and the International Labour Office.27 Each
of these bodies has their own structure and functions within the ILO. The ILO’s
director-general, Juan Somavia, introduced the Decent Work Agenda in his report to
the International Labour Conference, which established as the primary goal of the
ILO “to promote opportunities for women and men to obtain decent and productive
work, in conditions of freedom, equity, security and human dignity”.28
The ILO community consists of governments and workers’ and employers’
representatives. The institution on which the ILO is founded also includes labour
laws, social justice and tripartism.29 Tripartism refers to the participation of
employers, workers and governments in the ILO structures. The original impetus
behind the development of the ILO was war and revolution. Through the years these
two streams30 came together and the important role social justice would play in the
further development of the ILO was emphasized.31
SADC region” paper presented at the EGDI and UNU-WIDER Conference on “Unlocking human
potential: Linking the informal and formal sectors” 17-18 September 2004, Helsinki, Finland, stated
that “[i]nformal social security arrangements are those self-organised informal safety nets which are
based on membership of a particular social group or community, including, but not limited to, family,
kinship, age group, neighbourhood, profession, nationality, ethnic group, and so forth”.
26
Van Niekerket al (2012) 20.
27
Ibid.
28
Available on http://www.ilo.org/public/english/support/lib/century/index6.htm, visited on 2013/03/15
and http://www.ilo.org/global/about-the-ilo/decent-work-agenda/lang--en/index.htm, visited on
2013/03/12. Also see Van Ginneken(2003) Int Lab Rev 279.
29
Rodgers et al (2009) x.
30
War and revolution.
31
Rodgers et al (2009) 3.
16 © University of Pretoria
The ILO standards lay down actions to be taken or principles to be respected by the
members of the ILO.32 The standards are negotiated in multinational forums by
governments, and require the participation of workers and employers to be ratified.
These international instruments include, but are not limited to, conventions,
recommendations and declarations.33 The standards should ideally be appropriate to
the adopting country’s level of development and the governance already
implemented. This ensures that the standards can have a positive impact on the
country and that the necessary steps are taken to comply with the requirements.34
Another issue that needs to be clarified under the ILO with regard to migrants is that
of international agreements between countries, which can be bilateral as well as
multilateral.35 Mpedi indicates that the goal of these agreements is “the prevention of
destitution among non-citizens during period(s) of absence from, and on return to,
their home counties.”36 These agreements are built on certain principles,37 which are
embraced in numerous ILO instruments concerning social protection for migrants.38
Agreements between nations could be of utmost importance when dealing with
social protection for all individuals. The ILO has actively recommended bilateral
agreements between nations as a way of managing the flow of migration between
countries.39The ILO’s standards play an important role when dealing with any issue
related to the work environment.40 The ILO’s outlook and standards regarding the
different aspects of social protection will be dealt with in the following paragraphs,
32
Ibid 19.
Van Niekerket al (2012) 21 – 22.
34
Rodgers et al (2009) 22 – 24.
35
See also the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families Adopted by General Assembly Resolution 45/158 of 18 December 1990,
which states in its preamble that it “[r]ecogniz[es] also the progress made by certain States on a
regional or bilateral basis towards the protection of the rights of migrant workers and members of
their families, as well as the importance and usefulness of bilateral and multilateral agreements in
this field”.
36
Mpedi: Introduction in Becker and Olivier (2008) 5.
37
The principles are equality of treatment, determination of applicable legislation, maintenance of
acquired rights and reciprocity.
38
For example ILO Standards for the XXI Social Security (2002 ILO Geneva) 41 – 44 and ILO Social
Security for Migrant Workers (1996 ILO Geneva) 8 – 20.
39
Becker and Olivier (2008) 30.These agreements will be discussed in the comparative chapter to
indicate whether such agreements exist between South Africa and its neighbouring countries, as
well as the implications thereof.
40
The Governing Body of the ILO initiated a campaign in 1995 to secure the universal ratification of
the fundamental conventions, with the result that 80% of the possible ratifications have occurred.
See Van Niekerket al (2012) 22.
33
17 © University of Pretoria
starting with the broad concept of social protection as the umbrella term. However,
the ILO conventions and standards with regard to migration and migrant workers
specifically will be evaluated in Chapter 4 of this dissertation.
2.3.2 The ILO and Social Protection
According to the ILO, social protection is much broader now than it was in 1919
when the ILO was established. The Decent Work Agenda covers, inter alia, social
security, unemployed persons seeking employment, fundamental labour rights,
occupational safety and migrant workers.41 Social protection is recognized by the
ILO as a human right.42 The ILO supports a basic social protection package, which
forms a platform for countries to develop their social protection standards in line with
their economies.43
The objectives that the ILO identified pertaining to social protection also provide
clarification to the concept of social protection. The objectives include the following:
“i.) Extending the coverage and effectiveness of social security schemes;
ii.) Promoting labour protection, which comprises decent conditions of work,
including wages, working time and occupational safety and health, essential
components of decent work;
iii.) Working through dedicated programmes and activities to protect such
vulnerable groups as migrant workers and their families; and workers in the
informal economy.”44
The ILO has a universal approach, actively promoting the principle of “social
protection for all”.45 The ILO attempts to achieve this by implementing programmes
with specific attention to the diversity of the socio-economic actualities of each
country.46 This realization of the fundamental differences between countries has led
to the development of numerous concepts. The concept of a social protection floor
was proposed by the World Commission on the Social Dimension of Globalization
and was developed by the ILO to extend the coverage of social protection.
41
Rodgers et al (2009) 139.
Also mentioned in Chapter 1.
43
Kapindu (2011) AHRLJ 95.
44
Available on http://www.ilo.org/global/about-the-ilo/decent-work-agenda/social-protection/lang-en/index.htm visited on 2012/06/19.
45
Rodgers et al (2009) 139, 168.
46
Ibid 168.
42
18 © University of Pretoria
According to the recommendation, the “social protection floors are nationally defined
as sets of basic social security guarantees which secure protection aimed at
preventing or alleviating poverty, vulnerability and social exclusion.”47 Nyenti and
Mpedi confirm that the reason for this development is that “a certain minimum level
of social protection needs to be an accepted and undisputed part of the socioeconomic floor of the global economy.”48 Despite the ILO’s attempts to extend social
protection to all by developing international instruments together with other
international organizations,49 the implementation of these obligations is still not being
transformed into actual access to social protection.50
2.3.3 The ILO and Social Security
The ILO’s initial approach to social protection came in the form of social security.
Since the establishment of the ILO, social security has been one of the core areas of
the ILO’s mandate.51 This approach was very much in line with that of the
Declaration of Philadelphia.52 The ILO dedicated a number of conventions and
recommendations concerning the development of social security over the years. It is
significant to acknowledge the fact that the ILO originally dealt with social insurance
before broadening its scope.
In the 19th century, a need for protective legislation emerged, which was the
beginning of a new concept. It was part of the state’s social function to offer social
protection for its community.53 This formed the groundwork for the development of
social insurance in a time of war. The systems were implemented for both workers
and employers, who contributed to a fund for social and economic crises.54 During
47
Text of the Recommendation Concerning National Floors of Social Protection, International Labour
Conference, Provisional Record 14A One hundred and first session, Geneva, 2012 4.
48
Nyenti and Mpedi (2012) PELJ 244.
49
Such as the United Nations Organisation.
50
One of the factors preventing this transformation is the member countries’ territorial sovereignty.
Becker and Olivier (2008) 4.
51
ILO’s International Labour Conference, Social Protection Floors for Social Justice and a Fair
Globalization, 101st Session, 2012 Report IV (1) 5.
52
The Declaration of Philadelphia was adopted by the International Labour Conference at its 26th
Session, held in Philadelphia, on 10 May 1944. The Declaration of Philadelphia forms part of the
ILO Constitution. See also Rodgers et al (2009) 166.
53
For example, the Declaration of Philadelphia III provides for “(f) the extension of social security
measures to provide a basic income to all in need of such protection and comprehensive medical
care”. See Rodgers et al (2009) 141.
54
During the current development of the extension of social security, Recommendation No 67 of the
ILO recommends in par 2 and 3 that income security should be organized as far as possible on the
19 © University of Pretoria
the years that followed, social assistance no longer took an inferior place to social
insurance. The ILO acknowledged that both approaches were required in an
inclusive programme of social security.55
The Recommendation Concerning National Floors of Social Protection, 2012 (No
202) reaffirmed that the right to social security is a human right.56 Thus, once again,
the importance of international standards regarding social security was highlighted.
The same text57 recognizes that social security is an investment in people, assisting
them to participate in the labour market in an ever-changing economy. This indicates
the link between the different elements of social protection, namely social security
and labour security.
The most significant ILO convention concerning social security is the Social Security
(Minimum Standards) Convention, 1952 (No 102). It lays down the foundation for the
development of social security58 and contains the minimum requirements for a social
security system in a country in which it was ratified.59 This convention gives an
indication of the different standards that should be taken into account when dealing
with the sections that should be evaluated by the adopting country.60 This convention
establishes minimum international standards regarding nine branches of social
security, namely: medical care, sickness benefits, unemployment benefits, old-age
benefits, employment injury benefits, family benefits, maternity benefits, invalidity
benefits and survivors' benefits.61These usually form the basis of the social grants
provided by a state that has ratified the convention.
basis of compulsory social insurance for the coverage of all workers and their families, including the
self-employed, which should be complemented by social assistance programmes for the coverage
of those who fall outside of formal social security schemes, thus ensuring full coverage of the
population. See ILO’s International Labour Conference, Social Protection Floors for Social Justice
and a Fair Globalization, 101st Session, 2012Report IV (1) 11 and Rodgers et al (2009) 144.
55
Rodgers et al (2009) 152.
56
International Labour Conference, Provisional Record 14A One hundred and first Session Geneva,
2012 2.
57
Text of the Recommendation Concerning National Floors of Social Protection, International Labour
Conference, Provisional Record 14AOne hundred and first Session Geneva, 2012 2.
58
Strydom et al (2006) 326.
59
Ibid 6.
60
To name a few: Part III Sickness; PartIV Unemployment; Part V Old age; Part VI Employment
injury: Incapacity of Work; Invalidity; Survivors; Part VIII Maternity; Part IX Invalidity; Part X
Survivor.
61
There are also conventions which seek equal treatment of nationals and non-nationals and those
that promote the protection of acquired social security rights when workers transfer their work from
one country to another.See, for example: the Equality of Treatment (Accident Compensation)
20 © University of Pretoria
This convention forms part of the so-called ‘updated’ conventions of the ILO.62 This
is an indication that the conventions are still applicable in everyday life and are up to
date in the modern and changing society, despite the age of these conventions. The
‘updated’ conventions are the Medical Care and Sickness Benefits Convention, 1969
(No 130), Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No 128),
Equality of Treatment (Social Security) Convention, 1962 (No 118), and the
Maintenance of Social Security Rights Convention, 1982 (No 157). As stated by
Mpedi, the last two conventions mentioned require the member state to conclude
social security agreements by negotiating with other ratifying countries.63
Article 14 of the Maintenance of Social Security Rights Convention, 1982, reads as
follows:
“[e]ach member shall promote the development of social services to assist
persons covered by this Convention, particularly migrant workers, in their
dealings with the authorities, institutions and jurisdictions, particularly with
respect to the award and receipt of benefits to which they are entitled and the
exercise of their right of appeal, as well as in order to promote their personal
and family welfare.”
This article shines light on the fact that the conventions of the ILO cannot be read
separately, but should be interpreted as intended, interlinked with all other
conventions. Unfortunately, South Africa has not yet ratified any of these
conventions.64 It is recommended that South Africa, as member state, should
consider ratifying some or all of these conventions to echo the ethics of the ILO and
develop its social security system in line with international standards.65
2.3.4 The ILO and the UN regarding Labour Security
As mentioned previously, the ILO’s concept of social protection is wider than mere
social security. It also consists of labour protection. This includes labour markets and
social services, and their goals for decent work are in line with the concept of social
protection.66 The convention concerning Termination of Employment at the Initiative
Convention, 1925 (No 25); the Equality of Treatment (Social Security) Convention, 1962 (No 118);
and the Maintenance of Social Security Rights Convention, 1982 (No 157). 62
Mpedi and Govindjee (2009) Obiter 781.
63
Ibid. Also see the discussion in Chapter 4.
64
Strydom et al, (2006) 6.
65
Mpedi and Govindjee (2009) Obiter 781.
66
Van Ginneken (2003) Int Lab Rev 10.
21 © University of Pretoria
of the Employer, 1982 (No 158), falls specifically under employment security, as it is
referred to by the ILO. This term is synonymous with labour security, but as
explained in Chapter1, the scope of this dissertation is not limited to employees or
cases involving an employment contract, and therefore ‘labour’ would be the more
appropriate term. This convention indicates in Article 2 that it is applicable to all
employed persons,67and is thus not limited to citizens of the ratifying country. It,
however, excludes some categories from specific provisions; these include workers
working under a contract of employment or on casual basis.68
Böhning avers that among the United Nations (UN) organizations, the ILO has the
constitutional responsibility of protecting the “interests of workers when employed in
countries other than their own”.69 However, for a number of political reasons, the ILO
was sidestepped when the UN adopted the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families in
1990 (hereinafter the International Convention).70
The International Convention71 is an inclusive instrument adopted by the UN.72It
extends social protection to all migrants, regardless of their status in their country of
residence. It guarantees the right to access to social protection even to irregular
migrants.73 This convention recognizes that migrant workers must be treated in the
67
A 2 of C158 of 1982 indicates that “[t]his Convention applies to all branches of economic activity
and to all employed persons”.
68
A 2 of C158 of 1982 furthermore states that “[a] member country may exclude the following
categories of employed persons from all or some of the provisions of this Convention: (a) workers
engaged under a contract of employment for a specified period of time or a specified task; (b)
workers serving a period of probation or a qualifying period of employment, determined in advance
and of reasonable duration; (c) workers engaged on a casual basis for a short period”.
69
Böhning (1991) IMR 700.Also mentioned briefly in Chapter 4.
70
The International Convention will be discussed further in Chapter 4 with regard to migration,
categories of migrants and its influence on the development of regulative legislation regarding
migration.
71
Adopted by General Assembly Resolution 45/158 of 18 December 1990.
72
Dupper (2007) Stell LR 219 225.
73
A 1 states that “[t]he present Convention is applicable, except as otherwise provided hereafter, to
all migrant workers and members of their families without distinction of any kind such as sex, race,
colour, language, religion or conviction, political or other opinion, national, ethnic or social origin,
nationality, age, economic position, property, marital status, birth or other status. See also Dekker
(2010) SA Merc LJ 392. Other key conventions include the Migration for Employment Convention
and Regulations ILO, 1949 (No 97) and the Migrant Workers (Supplementary Provisions)
Convention ILO, 1975 (No 143) and Migrants Workers Recommendations ILO, 1975 (No 151).
22 © University of Pretoria
same way as the nationals of the country in which they are employed.74 It further
places an obligation on the state parties, such as the employer of the migrant
worker, to guarantee the rights associated with the position of employment despite
the possibility of irregularity in the migrant’s migration status.75 The International
Convention specifically mentions the elements of social protection as defined
previously by various organizations.76
Some of the other conventions of importance under the concept of social protection,
which are also ‘updated’ conventions, are the Employment Promotion and Protection
Against Unemployment Convention, 1988 (No 168), the Employment Injury Benefits
Convention, 1964 (No 121) and the Maternity Protection Convention, 2000 (No 183).
The Discrimination (Employment and Occupation) Convention, 1958 (No 111), is one
of the 23 labour-associated conventions ratified by South Africa.77 This convention
provides a list of many causes of discrimination.78 This convention plays an
important part in dealing with social protection for migrant workers, since no one
should be discriminated against on any grounds. There are numerous other
conventions applicable when dealing with labour security, as well as with the other
elements of social protection.79 It is, however, not possible to deal with all of these
instruments, and therefore the most important conventions have been mentioned
and will be evaluated during the course of this dissertation where applicable.
74
A 25 indicates that “(1) [m]igrant workers shall enjoy treatment not less favourable than that which
applies to nationals of the State of employment in respect of remuneration and: (a) Other conditions
of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health,
termination of the employment relationship and any other conditions of work which, according to
national law and practice, are covered by these terms; (b) Other terms of employment, that is to
say, minimum age of employment, restriction on work and any other matters which, according to
national law and practice, are considered a term of employment.”
75
A 25(3).
76
A 27 – 28.
77
Tanner (2012) 107.
78
A 1 of C 111 of 1958.
79
To name a few: Unemployment Convention, 1919 (No 2); Employment Service Convention, 1948
(No 88); Labour Clauses (Public Contracts) Convention, 1949 (No 94); Equal Remuneration
Recommendation, 1951 (No 90); Equal Remuneration Convention, 1951 (No 100); Discrimination
(Employment and Occupation) Convention, 1958 (No 111); Minimum Wage Fixing Convention,
1970 (No 131); Occupational Health Services Convention, 1985 (No 161): and Promotional
Framework for Occupational Safety and Health Convention, 2006 (No 187).
23 © University of Pretoria
2.4
SOCIAL PROTECTION IN TERMS OF THE CONSTITUTION
2.4.1 Background
The Constitution is the legislative instrument with the highest status in the country. It
was a historic moment when the South African government adopted the Constitution.
Chapter I of the Constitution outlines the founding principles on which the rest of the
constitutional rights are based.80 These founding principles are stated in section 1
as:
“[t]he Republic of South Africa is one, sovereign, democratic state founded on
the following values:
(a) Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the Constitution and the rule of law.
(d) Universal adult suffrage, a national common voters’ roll, regular elections
and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness.”
The Bill of Rights is contained in Chapter II. The fundamental rights, also referred to
as ‘human rights’, are situated here. The application of international law is dealt with
in section 233 of the Constitution. This section provides that every court must prefer
a reasonable interpretation of any legislation considered that is consistent with
international law. This will be preferred above an interpretation that is inconsistent
with international law. Therefore, international law must be taken into account when
constitutional rights are evaluated to the extent that it is in line with the fundamental
values of the Constitution.81
Fombat points out that a number of African countries, including South Africa, have
adopted constitutions which establish the right to some form of social security as a
human right.82 The South African Constitution guarantees a number of socioeconomic rights. South Africa took the bold step of including, inter alia, the right to
social security in the Constitution,83 which changed the way that social protection is
perceived in the country. Therefore, this inclusion, as well as the other rights in the
Constitution associated with social protection, will be dealt with accordingly. In
80
Ss 1 – 6 of the Constitution.
S 39 of the Constitution.
82
Fombat (2013) AJICL 11 – 20.
83
S 27 of the Constitution.
81
24 © University of Pretoria
Government of the Republic of South Africa v Grootboom84 it was stated that “the
people of South Africa are committed to the attainment of social justice and the
improvement of the quality of life for everyone. The Preamble of the Constitution
records this commitment.”85
In South Africa, there are a variety of routes that could be used to enforce social
protection. These stem from both statutes and common law, and can be enforced by
institutions such as commissions,86 tribunals,87 boards,88 offices89 and courts.90
There are no specialized social protection courts or administrative tribunals in South
Africa.91 The content and extent of the right to social protection and the ambit of
socio-economic rights have been considered by the South African judiciary on a
number of occasions. In a number of cases, these rights were evaluated directly, and
in others they were considered in a more indirect manner.92
2.4.2 The Constitution
The South African Constitution has been called one of the most progressive
constitutions in the world.93Albie Sachs once acknowledged that:
“[i]t is no accident that constitutions usually come into being as a result of bad
rather than good experiences. Their text or subject is almost invariably: ‘never
again’. In the case of South Africa the new Constitution arises out of the need
to escape the profound humiliation and oppressions created by apartheid.
Through the Constitution we affirm something from our dolorous history. It is
worth repeating: all constitutions are based on mistrust. If we could trust our
rulers, our parties, ourselves, we would not need constitutions. Power not only
corrupts, it intoxicates, it confuses. Like nature it abhors vacuum, like water it
follows the path of least resistance. Oppression is oppression but in some
ways oppression in the name of the good is worse than oppression in defence
84
2001 (1) SA 46 (CC).
GrootboomPar 1.
86
Such as the South African Human Rights Commission.
87
One of these tribunals is the Commission for Conciliation, Mediation and Arbitration.
88
For example, the Appeals Committee of the Unemployment Insurance Board.
89
The Director General of the Department of Social Development would be placed in this category.
90
For example, the Constitutional Court and the labour courts.
91
Becker and Olivier (2008) 3.
92
The following cases dealt more directly with social security issues: Government of the Republic of
South Africa other v Grootboom and others 2001 (1) SA 46 (CC); Khosa v Minister of Social
Development; Mahlaule & Others v The Minister of Social Development & Others 2004 (6) SA 505
(CC); Larbi-Odam & Others v MEC for Education (North-West Province) 1998 (1) SA 745 (CC);
Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 756 (CC). The following cases dealt
more indirectly with labour security issues: Kylie v CCMA 2010 (7) BLLR 705 (AAH); Discovery
Health Ltd v CCMA 2008 ILJ 1480 (LC); Hoffman v South African Airways 2000 (2) SA 628 (W).
93
Becker and Olivier (2008) 7.
85
25 © University of Pretoria
of the bad, since it tarnishes the very ideas it seeks to protect and deprives
people even of the image of a better society.”94
The Constitution has two main objectives. It is used to determine whether legislation,
behaviour or actions are in line with the Constitution. If this is not the case, the
Constitution provides the necessary tools to declare a specific situation
unconstitutional. When dealing with any right, especially in the Constitution, there are
two ways to approach the interpretation of the Constitution or legislation that gives it
effect.
Firstly, the text must be dealt with accordingly. To understand the text itself, it must
be read in context as a whole. All of the other fundamental rights in Chapter II, as
well as the rest of the Constitution, must also be considered.95 Secondly, the
historical and social context of the right needs to be considered.96 The common law
entitlement of any individual will be taken into account, due to the fact that the
Constitution states that the common law should be observed.97 The fundamental
rights can, however, trump the common law if it is deemed to be what is best for the
affected person in the specific circumstances.98
The Constitution contains a number of human rights that could be interpreted to fall
within the scope of social protection. However, the term ‘social protection’ is not used
in the Constitution, which only refers to the term ‘social security’.99 Tshoose mentions
that:100
“[f]rom a constitutional rights perspective, it is clear that there is a close
interrelationship between the concept of social security and several other
related concepts that constitute the basis of specific fundamental rights, such
as the right to have access to land, to housing, to health-care services and to
sufficient food and water.”101
These rights are important when dealing with the concept of social protection, since,
as indicated in the explanation of the definition; social security is one of the elements
94
Sachs in Corder and McLennan (1995) 51.
Grootboom par 22 and 24 at 61H – 62A/B and 62D.
96
Ibid.
97
S 8 of the Constitution.
98
For example, the right not to be unfairly dismissed –Van Niekerk et al (2012) 98.
99
S 27 of the Constitution.
100
Tshoose (2010) PELJ 411.
101
S 25 to 27 in the Constitution.
95
26 © University of Pretoria
of social protection. All other legislation or customary uses must be in line with the
Constitution.102Section 39(2) of the Constitution requires that when interpreting any
legislation, and when developing common law or customary law, every court, tribunal
or forum must promote the spirit, purpose and objects of the Bill of Rights. This
should be the focus of any developing authority or interpreting court. Pakade ADJP
stated in Ngalo v The South African Social Security Agency (SASSA)103 that:
“[a]n important feature of the Constitution is the express recognition of socioeconomic rights in a justifiable Bill of Rights. These include the right to basic
education, access to adequate shelter and housing, adequate health care
services, the right to sufficient food, water and social security.”104
Socio-economic rights in the Constitution are flanked by a number of important
rights.105 The rights that form a part of social protection are positive rights, as they
can be claimed by individuals to be the delivery of protection by the government. The
fulfilment of these socio-economic rights will most probably continue to require the
courts to direct the way that the state must comply with its obligations.106 Socioeconomic rights can be a double-edged sword. On the one hand, they are seen in a
negative light, in which they place an obligation on the state and require it to deliver
certain socio-economic goods. On the other hand, they could be interpreted as a
positive development in the equal inclusion of all individuals. The main problem is
the enforcement of socio-economic rights, which must be done by a court.107 This is
where the separation of powers cited in the Constitution becomes relevant.108
Every case dealing with social protection must be interpreted individually, and
constitutional rights must be the starting point. This is essential when determining
whether the state has met the obligations placed on it by the Constitution. An
inclusive example of such an obligation is situated in section 27(2) of the
Constitution.109 Section 27 combines social assistance, and, to some extent, social
102
S 2 of the Constitution provides that the “[C]onstitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
103
(2740/11) [2013] ZAECMHC 4 (14 February 2013).
104
Par 1.
105
Becker and Olivier (2008) 7.
106
Currie and De Waal (2005) 569.
107
Ibid.
108
Ss 43 and 44 of the Constitution.
109
Grootboom Par 24 62D – E.
27 © University of Pretoria
insurance. Section 27(3) could be interpreted to include every person inside South
African borders, regardless of their immigration status.
The right to fair labour practice, which could be interpreted as the right to work, is a
human right because, as stated by Udombanat, “it is a means to an end – human
survival.”110 Although the subsections use the terms “worker”, “employee” and so
forth, the section also applies to “everyone”, and makes no reference to citizenship
or the existence of legally binding contracts of employment.111 When dealing with
labour and labour practices, it is not only a matter of establishing economic growth.
Social justice must also be a key part of these policies.
2.4.3 Social Protection
The rights in the Constitution that are of importance to migrants when evaluating
social protection are firstly contained in section 27 of the Constitution. The section
deals with health care, food, water and social security.112 It is noticeable that this
section places an indirect obligation on the state to provide basic social protection for
all, together with an internal restriction, namely that “the state must take reasonable
legislative and other measures, within its available resources, to achieve the
progressive realization of each of these rights.”113
This section is a summary of important aspects of social protection in South Africa,
although it is most definitely not the only section of the Constitution that deals directly
or indirectly with social protection. Section 23 of the Constitution is applicable when
the labour security component of social protection is evaluated. This section falls
under the heading “Labour Relations” and states that: “(1) [e]veryone has the right to
fair labour practices.”114
110
Udombanat (2006) Corn Int LJ 187.
Van Niekerk et al (2012) 36.
112
S 27 of the Constitution provides as follows:(1) Everyone has the right to have access to –(a)
health care services, including reproductive health care;(b) sufficient food and water; and(c) social
security, including, if they are unable to support themselves and their dependants, appropriate
social assistance.(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realization of each of these rights.(3) No one may
be refused emergency medical treatment.
113
S 27(2) of the Constitution.
114
The rest of s 23 reads as follow: “(2) Every worker has the right- (a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and (c) to strike. (3)Every
employer has the right- (a) to form and join an employers’ organisation; and (b) to participate in the
111
28 © University of Pretoria
Other fundamental human rights in the Constitution overlap and strengthen the right
to social protection. Human dignity115 is something that is associated with every
individual and it can never be taken away or be excluded from any person’s other
rights. Equality116 is not only one of the cornerstones of democracy,117 but also forms
the basis of any system that deals with human beings. In society, social protection is
essential and no system can be successful if its application is not equally available to
all.
The right to freedom and security of a person118 is a cornerstone of democracy,
together with the abovementioned two rights. Section 21 deals with freedom of
movement and residence. This is one of the more important rights when dealing with
migrants in particular. This section states in its first subsection that “everyone” has
the right to freedom of movement. Therefore, it is not limited to only South African
citizens. Lastly, but definitely not least, is the right to life.119 Every individual, whether
they are an adult or a child, a citizen of the country or a migrant, has the right to life.
This is part of the idea behind a social protection system – to provide for individuals
who can no longer provide for themselves. Furthermore, it aims to develop programs
to adequately equip a person to be economically active and have the necessary
skills to look after themselves.120
The fundamental rights in the Constitution are the building blocks of social protection
in South Africa, although they cannot be interpreted in solitude. Specific cases will be
discussed in Chapter 3 that deals with the South African legislative instruments and
the extension of social protection by the courts.121 The rights in the Constitution must
activities and programmes of an employers’ organisation. (4) Every trade union and every
employers’ organisation has the right- (a) to determine its own administration, programmes and
activities; (b) to organise; and (c) to form and join a federation. (5) Every trade union, employers’
organisation and employer has the right to engage in collective bargaining. National legislation may
be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this
Chapter, the limitation must comply with section 36 (1). (6) National legislation may recognise union
security arrangements contained in collective agreements. To the extent that the legislation may
limit a right in this Chapter, the limitation must comply with section 36 (1)”.
115
S 10 of the Constitution.
116
S 9 of the Constitution.
117
As stated in s 7 of the Constitution.
118
S 12 of the Constitution.
119
S 11 of the Constitution.
120
As stated in the definition of social protection in par. 2.2.
121
See Chapter 3.3.3.
29 © University of Pretoria
be read together with the different sections of the acts122that deal directly or indirectly
with the right to social protection. Most of the sections in these acts have been
interpreted and extended by the courts. Therefore, it is of utmost importance to
understand these sections and be aware of the latest court rulings to give the best
and most resent summary of the current position of migrant workers with regard to
social protection.123 This was emphasized by the Constitutional Court, where it was
stated that the Constitution “must not be construed in isolation, but in its context,
which includes the history and background to the adoption of the Constitution, and
other provisions of the Constitution itself”, which therefore encourages a narrower or
more specific approach.124
2.5
CONCLUSION
A number of definitions were considered in the beginning of this chapter. In order to
protect the best interests of the poor and vulnerable (such as migrants), it is
suggested that the definition of social protection should include the following
subdivisions: social assistance, social insurance and labour security. This conception
is derived from the definitions of different international organizations (the ILO and
ADB) and the Taylor Report. An important factor is the fact that all of the definitions
contain some reference to the alleviation of poverty. It is also clear that all of the
definitions indicate the acknowledgement of the need for the protection for those who
cannot provide for themselves.125
The concept of social protection is being developed in South Africa, as well as
across its borders, by implementing conventions, recommendations, legislation and
the views of academics. South African policymakers and the courts must take
cognizance of international standards developed by the ILO and the UN. Important
principles relating to the protection of social security and labour rights of migrants
have been included in ILO and UN conventions. South Africa is not a signatory to
122
These include: Basic Conditions of Employment Act 75 of 1997; Compensation for Occupational
Injuries and Diseases Act 85 of 1993; Employment Equity Act 55 of 1998; Immigration Act 13 of
2002; Labour Relations Act 66 of 1995; Medical Schemes Act 131 of 1998; Promotion of Equality
and Prevention of Unfair Discrimination Act 4 of 2000; Social Assistance Act 13 of 2004;
Unemployment Insurance Act 63 of 2001.
123
See Chapter 3.
124
Soobramoney par 16; Makwanyane par 9 – 10.
125
See Chapter 2.2.2.
30 © University of Pretoria
any of these conventions and it is argued that the adoption of these conventions
would go a long way in improving the provisions for migrant workers in South Africa.
The Constitution places an obligation on the state and South African courts to follow
international norms when interpreting legislation. Therefore, there is a constitutional
obligation on South Africa to acknowledge international norms with regard to social
protection and implement these norms in order to develop the South African system.
The Constitution acknowledges the right to social protection in the form of social
security in section 27, as well as in section 23 when dealing with labour security as a
part of social protection. The other fundamental rights in the Bill of Rights play a
significant part in the realization of social protections. Human dignity and equality are
as much a part of the South African social protection system as the two rights
contained in sections 23 and 27 of the Constitution. The enforcement of socioeconomic rights has been perceived in a whole new light since the inclusion of social
security and labour rights in the Constitution.
Social protection could easily be defined as the tools needed by human beings in
order for them to assist themselves in their fight against poverty and deprivation.
This role is why social protection should be defined and examined to determine the
extent of social protection, if any, granted to the migrant worker in South Africa.
31 © University of Pretoria
CHAPTER 3
SOCIAL PROTECTION: THE SOUTH AFRICAN REGULATORY FRAMEWORK
3.1
INTRODUCTION
32
3.2
LEGISLATIVE FRAMEWORK
34
3.2.1 Introduction
34
3.2.2 Social Assistance
34
3.2.3 Social Insurance
38
3.2.4 Labour Security
42
3.3
THE COURTS: EXTENDING THE RIGHT TO SOCIAL PROTECTION
47
3.3.1 Introduction
47
3.3.2 Socio-economic Rights
48
3.3.3 Labour Security
56
3.4
CONCLUSION
3.1
INTRODUCTION
59
South Africa is a country with a well-developed regulatory framework. The country
follows the doctrine of the separation of powers.1 The three arms of government are
the judiciary, the executive and the legislative authority. These arms need to function
both jointly and separately for the democratic system to be implemented as intended
in the drafting of the Constitution of the Republic of South Africa, 1996 (the
Constitution). The South African legislative authority, together with the other arms of
government, develops the necessary legislation required by the society to provide for
the necessities of the people in the community.
South Africa is the African continent’s2 largest economy. According to a recent study
of five different SADC countries3 it was found that 86% of the migrants are situated in
South Africa for the purposes of work.4 Job-seeking is one of the reasons why the
1
Mbazira (2011) SAPL 62.
The African continent consists of 54 countries. To name a few: Algeria, Angola, Botswana,
Cameroon, Congo, Egypt, Gabon, Kenya, Mauritius, Mozambique, Nigeria, South Africa,
Swaziland, Tanzania, Zambia and Zimbabwe. Available on http://www.worldatlas.com/cntycont.htm
visited on 2013/04/09.
3
Botswana, Lesotho, Mozambique, Swaziland and Zimbabwe.
4
Olivier (2011) Part 1 SADC Law J 123.
2
32 © University of Pretoria
country receives the most migrants.5 These migrants include a large number of
irregular6 migrants,7 as well as migrants who legally reside in the country.
The South African regulatory framework consists of legislation (national, provincial
and municipal), common law and customary law. Legislation is developed and
passed down by the National Legislative Authority,8which has the power to pass
legislation with regard to any matter and to assign any of its legislative powers,
except the power to amend the Constitution, to any legislative body in another
sphere of government.9
In one of the most significant South African court cases dealing with social
protection, the court stated that, when appropriate, specialized organizations such as
the ILO can supply relevant guidelines for the interpretation of national law, and in
particular the Bill of Rights.10 It is noticeable that the South African courts do have
the will to use the ILO conventions and recommendations, for example, but they do
not have the means to execute these, since most of these instruments have not
been ratified by South Africa.
Legislation relevant to the main elements of social protection, as explained in
Chapter 2, will be discussed in this chapter. The three elements are, namely, social
assistance, social insurance and labour security. Despite the fact that there are a
number of acts that relate to social protection, these legislative instruments have
certain limitations. The South African courts have played an important role in the
development of social protection, and the most significant cases dealing with social
protection will be discussed in this chapter. The acts that will be discussed form part
of the regulatory framework within which the South African government functions. It
will be the focus of this next chapter to interpret the legislation in accordance with the
Constitution and evaluate the courts’ decisions.
5
Kapindu (2011) AHRLJ 94.
In Chapter 2 of this dissertation it was explained that this term would be used to best describe
migrant workers who are in the country without the necessary authority according to the South
African immigration laws. See Chapter 2.2.1 ft 3.
7
Between 500 000 and 1miljion according to Kapindu (2011) AHRLJ 94.
8
S 44 of the Constitution.
9
S 44 of the Constitution regulates the powers allocated to the national legislative authority.
10
Grootboompar 26 64D – E.
6
33 © University of Pretoria
3.2
LEGISLATIVE FRAMEWORK
3.2.1 Introduction
South Africa’s regulatory framework is constantly under development. Most of the
legislation applicable to social protection is fragmented and does not include informal
social security.11 The legislation related to the formal sector of social protection will
be discussed under this part of the dissertation.
Before the different sections of social protection and the legislation applicable to
each are discussed, it is appropriate to acknowledge that one act is relevant when
dealing with all of these categories. This is the South African Immigration Act.12 It
distinguishes between different categories of non-citizens according to their
immigration status and/or intention of entering into the receiving country. The
Immigration Act13 forbids the employment of irregular immigrants. There is no
protocol that guarantees the protection of these workers when they need to
approach the courts or the CCMA for remedies where there are problems arising
from their employment status.14 The legal status of migrant workers is discussed
more comprehensively in Chapter 4.
3.2.2 Social Assistance
This form of social protection is captured in section 27(1)(c) of the Constitution, and
there it is referred to as one of the strands of social security.15 The importance of the
11
See Dekker (2005) 53. Fombat (2013) AJICL 3 refers to the notions of “indirect” and “informal”
social security, which are particularly relevant in the African context. The first term refers to the
provision by government of food, housing, education and energy that are not part of the traditional
social security schemes. The latter term relates to a safetynet provided by members of a social
group such as a family or community. The informal sector is where migrants are mostly situated.
Dekker (2005) 6 defines this term as provisions relying on “principles of reciprocity and solidarity”.
She states that this form of social protection does not rely only on financial transfers, but is support
unique to the particular group of individuals, where this group has something in common. “Informal
social security arrangements are those self-organised informal safety nets which are based on
membership of a particular social group or community, including, but not limited to, family, kinship,
age group, neighbourhood, profession, nationality, ethnic group, and so forth.” See Kapindu (2011)
AHRLJ 96 referring to Olivier et al “Formulating an integrated social security response: Perspectives
on developing links between informal and formal social security in the SADC region” paper
presented at the EGDI and UNU-WIDER Conference on “Unlocking human potential: Linking the
informal and formal sectors” 17 – 18 September 2004, Helsinki, Finland.
12
13 of 2002. This act will be discussed in more detail in Chapter 4 dealing specifically with migrants.
13
S 38 of Act 13 of 2002.
14
Mpedi and Smit (2011) 156.
15
Defined in Chapter 2.
34 © University of Pretoria
right to access to social security16 was described by Jansen van Vuuren and
Lamarche, who stated that:
“[a]s a human right, social security can contribute to social protection by
providing useful benchmarks to assess how the economic, political and
ideological initiatives arising from the need for social protection contribute to
respect for human rights, including the right to social security.”17
The Social Assistance Act18 (SAA) is the primary piece of legislation that regulates
the provision and implementation of social assistance.19 Social assistance is
financed by tax and the entitlement to benefits is means-tested.20 When section 27 of
the Constitution is interpreted together with the words in the preamble of the SAA,21
it could be said that social assistance should be formulated comprehensively to
include all individuals in need of assistance.22 This, according to Sinclair, is not the
current position associated with the SAA.23 The objectives of the SAA are to:
“(a) provide for the administration of social assistance and payment of social
grants;
(b) make provision for social assistance and to determine the qualification
requirements in respect thereof;
(c) ensure that minimum norms and standards are prescribed for the delivery
of social assistance; and
(d) provide for the establishment of an inspectorate for social assistance.”24
In section 1 of the SAA, social assistance is narrowly defined. It is stated that social
assistance is limited to a “social grant in terms of the Social Assistance Act”.25
“Social assistance” is defined in section 1 as “a social grant including social relief of
16
S 27 of the Constitution.
Jansen van Vuuren and Lamarche “The Right to Social Security and Assistance” in Brand and
Heyns (2005) 121. See also Richter (2006) SAJHR 209.
18
13 of 2004.
19
Other legislative instruments under social assistance are the Special Pensions Act 69 of 1996 and
the Military Pensions Act 84 of 1976. For further explanations on these acts see Olivier (2011) Part
1 SADC Law J 133.
20
Dupper (2007) Stell LJ 224. Means-tested could be defined as subject to a means test, which
involves assessment by an outsider of an individual or a family’s income and assets. See Malherbe
(2003) 383. S 5 of the SAA indicates that “(2) [t]he Minister may prescribe additional requirements
or conditions in respect of – (b) means testing.”
21
The preamble states that “since the Constitution of the Republic of South Africa, 1996 (Act 108 of
1996), provides that everyone has the right to have access to social security, including, if they are
unable to support themselves and their dependants, appropriate social assistance, and obliges the
state to take reasonable legislative and other measures, within its available resources, to achieve
the progressive realisation of each of these rights.”
22
The Constitution in s 27 uses the word “everyone”.
23
Sinclair (2012) Stell LR 200.
24
S 3 of the SAA.
25
S 1 of the SAA. See also Sinclair (2012) Stell LR 200.
17
35 © University of Pretoria
distress.”26 The SAA does not define social grants in general terms such as “a cash
transfer paid by the state to persons who demonstrate that they do not have enough
income to support themselves and their dependants”.27Instead, the SAA makes
provisions for various forms of social grants and lists the following categories:







child support grant;
care dependency grant (for disabled children);
foster child grant;
disability grant;
older person's grant;
war veteran's grant; and
grant-in-aid as a temporary intervention.28
These categories serve as a vague definition of what is understood under the
concept of social assistance in South Africa. These grants are paid monthly to the
individuals who need protection, when other legislation does not supply necessary
remedies.29
Initially, the SAA old-age grants were awarded to women 60 years and older and
men 65 years and older.30 This was not in line with one of the Constitution’s
fundamental principles, namely equality.31 However, this section was brought in line
with the fundamental values of our country and substituted by section 1 of Act 6 of
2008.32 The disability grant is payable to individuals who are physically or mentally
disabled, unfit to obtain any form of employment, and who can therefore not provide
for themselves.33 The SAA mentions a specific age, but is silent about the person’s
nationality in this section. As stated in the introductory chapter, this dissertation will
not focus on children, and therefore the grants associated with children will not be
discussed. The principles established by the SAA, as well as its regulations, extend
26
S 1 of the SAA.
Sinclair (2012) Stell LR 200.
28
S 4 of the SAA.
29
De Beer and Vettori (2007) PER 2.
30
Dekker (2005) 64.
31
Ss 7 and 9 of the Constitution.
32
S 10 of the SAA provides that: “[a] person is, subject to section 5, eligible for an older person's
grant if – (a) in the case of a woman, she has attained the age of 60 years; and (b) in the case of a
man, he has – (i) after 1 April 2008, attained the age of 63 years; (ii) after 1 April 2009, attained the
age of 61 years; or (iii) after 1 April 2010, attained the age of 60 years; [Para. (b) substituted by s. 1
of Act 6 of 2008.]”.
33
S 9 of the SAA states that: “[a] person is, subject to section 5, eligible for a disability grant, if he or
she – (a) has attained the prescribed age; and (b) is, owing to a physical or mental disability, unfit to
obtain by virtue of any service, employment or profession the means needed to enable him or her to
provide for his or her maintenance”.
27
36 © University of Pretoria
disability grants to individuals who are incapable of entering the labour market due to
their disability.34
The SAA grants the Director General of the Department of Social Development the
authority to discontinue the imbursement of grants to individuals who are absent
from the Republic of South Africa35 or who misspend the grants.36 The Director
General may also demand that any overpayment of any social assistance grant must
be repaid.37 The South African Social Security Agency (SASSA) was established by
the South African Social Security Agency Act38 to ensure the efficient and effective
management, administration and payment of social assistance.39 The SAA assigns
to the Agency a duty to make available, out of monies apportioned by parliament, the
different grants as stated above.40
The SAA originally restricted protection through social grants to citizens and to those
persons who are not citizens but who are covered by an agreement between South
Africa and the country where the person is a citizen.41 According to the current
Regulation 1 of the SAA, refugees are included in the group of individuals eligible for
social assistance.42 Therefore, the protection under the SAA in the form of payment
of social assistance extends to South African citizens, permanent residents and
refugees.43
34
Richter (2006) SAJHR 199.
S 7 of the SAA.
36
S 8 of the SAA.
37
S 9 of the SAA.
38
9 of 2004.
39
S 5 of Act 9 of 2004. As discussed later in this chapter this was extended.
40
S 4 of the SAA.
41
Ss 2(1) and 5(1)(c) of the SAA. See also s 231(2) of the Constitution regarding international
standards with regard to agreements between countries. These agreements are also referred to as
bilateral or multilateral agreements. Also see Chapter 4 regarding the international organizations’
outlook on agreements and Chapter 5 referring to agreements between South Africa and its
neighbouring countries.
42
Government Gazette 35205 (30 March 2012) states that “2. [r]egulation 1 of the Regulations is
hereby amended by the substitution of the definition of refugees, after the definition of" permanent
resident", of the following definition: "refugee" means a person referred to in section 1 of the
Refugee Act, 1998”. Available on http://www.info.gov.za/view/DownloadFileAction?id=162809
visited on 2013/08/15.
43
Furthermore, the amendment to regulation 2 indicates that: “3. [r]egulation 2 of the Regulations is
hereby amended by the substitution for paragraph (e) by the following paragraph: (e) is a South
African citizen, permanent resident or a refugee.” These amendments came into force on 1 April
2012.
35
37 © University of Pretoria
Coverage is not linked to being an employee. However, only migrants with
permanent residence status can access social assistance in South Africa according
to our legislation.44 The SAA does not extend to irregular non-citizens.45 Legislation,
in the form of the SAA, has made an audacious effort to uplift the country’s citizens.46
Unfortunately, the rights afforded to individuals by legislation are not enough, since
the provision thereof often fails. One of the reasons for this is the lack of sufficient
public financial resources.47 Therefore, it can be stated that access to social
assistance for migrants is more problematic than access to social insurance.48
It is also clear that the definition of social grants in accordance with the SAA is not in
line with the promise of social assistance entrenched in the Constitution. The grants
mentioned are divided into specific categories. Therefore, social grants not only
exclude the majority of migrant workers, but also a part of the citizen community.49
However, it is not recommended that unlimited categories should be implemented in
social assistance in South Africa.
3.2.3
Social Insurance
The social insurance system in South Africa consists of retirement schemes,
workmen’s compensation funds, the Road Accident Fund (RAF), health insurance
and unemployment insurance. The RAF is the only scheme which is not
employment-based.50 These categories are regulated by a number of pieces of
legislation. The Unemployment Insurance Act (UIA)51, the Unemployment Insurance
Contribution Act (UICA)52 and the Compensation for Occupational Injuries and
Diseases Act (COIDA)53 are some of the relevant acts.
44
Millard (2008) AHRLJ 42.
Olivier (2011) Part 1 SADC Law J 146.
46
De Beer and Vettori (2007) PER 2.
47
See Soobramoney v Minister of Health, Kwazulu-Natal1998 (1) SA 765 (CC); Government of the
Republic of South Africa v Grootboom2000 (11) BCLR 1169 (CC); Minister of Health v TAC 2002
(5) SA 721 (CC). See the discussion in Chapter 3.3.3.
48
Dupper (2007) Stell LJ 225 and 250.
49
Sinclair (2012) Stell LR 201 states that “the definition and eligibility sections in the Social
Assistance Act have the effect of excluding absolutely”.
50
Millard (2008) AHRLJ 40.
51
Act 63 of 2001.
52
Act 4 of 2002.
53
Act 85 of 1993.
45
38 © University of Pretoria
The purpose of the UIA is to:
“[e]stablish an unemployment insurance fund to which employers and
employees contribute and from which employees who become unemployed or
their beneficiaries, as the case may be, are entitled to benefits and in so doing
to alleviate the harmful economic and social effects of unemployment.”54
The objectives of COIDA are to provide for compensation for disablement caused by
occupational injuries or diseases. Such injuries or illnesses or death resulting from
such injuries or diseases must have been sustained by employees in the course of
their employment,.55 The UIA and COIDA only apply to persons who fall under their
respective definitions of ‘employee’.56
The UICA is responsible for the collection of contributions and administers the
Unemployment Insurance Fund.57 The UICA applies to employees and employers,
unless these individuals are specifically excluded.58 It is a contentious issue whether
irregular migrant workers should be deemed to be employees. In South Africa, public
insurance schemes mostly extend to formal workers,59 while migrant workers usually
fall within the informal sector. This scheme is therefore mostly to the advantage of
individuals in the formal sector who make contributions to the fund, and thus would
automatically exclude most migrant workers, owing to the fact that they work in the
informal sector. 60
The UIA also does not apply to a person who enters the Republic of South Africa for
the purpose of carrying out a contract of, for example, service within the Republic, if
upon the termination the employee is required under certain circumstances to leave
the Republic and their employers.61 These exclusions in the specific acts are
54
S 2 of the UIA.
See the long title of COIDA.
56
As defined in Chapter 1.1.4. See also the definition of ‘employee’ as contained in s 1 of the
Unemployment Insurance Act and s 1 of the Compensation for Occupational Injuries and Diseases
Act and the discussion in Van Niekerket al (2012) 70 – 73.
57
Dekker (2005) 57.
58
S 3 of the UIA.
59
Van Niekerket al (2012) 459.
60
Ibid 468.
61
S 3(1)(d) of the UIA – “(d) persons who enter the Republic for the purpose of carrying out a contract
of service, apprenticeship or learnership within the Republic if upon the termination thereof the
employer is required by law or by the contract of service, apprenticeship or learnership, as the case
may be, or by any other agreement or undertaking, to repatriate that person, or that person is so
required to leave the Republic, and their employers.”
55
39 © University of Pretoria
problematic. It causes a situation in which the individuals who are excluded from the
formal social protection of the abovementioned acts have no protection if they should
lose their employment. Owing to the lack of formal protection, excluded people will
either be without any support, or they would have to rely on informal social security.62
Although this has not been considered by the courts, should a person’s temporary
residence in terms of the Immigration Act be dependent on the existence of a
contract of employment or a bilateral agreement, such a person will in all probability
not be entitled to unemployment benefits in terms of the UIA once the person returns
to the sending country. However, the UIA is silent on the position pertaining to
persons who do not return to their country of origin. According to Olivier, the
Unemployment Insurance Fund also has no experience to date of paying benefits
outside South Africa’s borders.63
COIDA does not exclude non-citizens from claiming from the compensation fund.
COIDA offers a system of no-fault reparation for employees with injuries arising from
their employment. It is up to non-resident employees to elect to claim in terms of
COIDA or the laws of their own country.64 However, COIDA has numerous
exclusions from its protection sphere.65 This causes some of the communities’
members to remain without any social protection.66
Health care is specifically mentioned by the Constitution.67 There is private
provisioning in South Africa, but this is usually linked to formal occupation. Private
medical schemes are regulated by the Medical Schemes Act.68 Free health care is
62
Dekker (2005) 59.
Olivier (2011) Part 1 SADC Law J 131.
64
Van Niekerket al (2012) 483.
65
S 1 of COIDA.“’employee’ means… but does not include – (i) a person, including a person in the
employ of the State, performing military service or undergoing training referred to in the Defence
Act, 1957 (Act No. 44 of 1957), and who is not a member of the Permanent Force of the South
African Defence Force; (ii) a member of the Permanent Force of the South African Defence Force
while on “service in defence of the Republic” as defined in s 1 of the Defence Act, 1957; (iii) a
member of the South African Police Force while employed in terms of s 7 of the Police Act, 1958
(Act No. 7 of 1958), on “service in defence of the Republic” as defined in s 1 of the Defence Act,
1957; (iv) a person who contracts for the carrying out of work and himself engages other persons to
perform such work; (v) a domestic employee employed as such in a private household.”
66
For example, informal sector workers and domestic workers.
67
S 27 of the Constitution.
68
131 of 1998.
63
40 © University of Pretoria
available to some groups of the society.69 However, it is submitted that it would be
more appropriate to categorize this as social assistance.
In South Africa, the implementation of a National Health Insurance (NHI) system is
currently under discussion. The aim of the NHI system is to provide universal access
to medical services.70 A Green Paper, a Policy on National Health Insurance
published in August 2011, suggests that South Africa should implement a single-tier
system financed through a single source. Health insurance will also be under the
control of a “national fund”. Commentators have mentioned that the Green Paper
provides for a strong basis for improving the health system, and thus includes
everyone.71 However, members of society under this system will make no
contributions, and thus it may be better to classify the system as social assistance
rather than social insurance.
Another part of social insurance is retirement schemes. South Africa does not have a
national retirement scheme, but individuals can join private schemes. The private
provisions are governed by the Pension Funds Act.72 Under the abovementioned
social assistance, there is provision for an old-age grant for both men and women.
This plays an important role in the country’s social protection system. However, the
retirement system in South Africa has the effect that only the very rich or the formally
employed can contribute to a fund to provide for themselves during old age.73
According to Olivier, farm workers are another example of migrant workers in South
Africa. These individuals are rarely members of a retirement scheme and are mostly
left without any formal post-employment income if they should retire.74 This
vulnerable group needs social protection when they can no longer provide for
themselves because of old age.
69
These groups are: the elderly, pregnant mothers and children under seven years of age.
Rijnen
(2010)
Medihelp
Medical
Scheme.
Available
on
http://www.medihelp.co.za/Libraries/2012_Upload_Annual_report_of_2011/A06867_Medihelp_Engli
sh_Annual_Report.sflb.ashxvisited on 2012/06/25.
71
Van den Heever “Evaluation of the Green Paper on National Health Insurance” Available on
http://www.hsf.org.za/projects/health-reform/national-health-insurance-project-developments/nhiuseful-resources/responses-to-national-health-insurance-green-paper visited on 2012/06/25.
72
24 of 1956.
73
Dekker (2005) 59.
74
Olivier (2011) Part 1 SADC Law J 134.
70
41 © University of Pretoria
The Road Accident Fund Act75 regulates the Road Accident Fund (RAF). The RAF’s
objectives76 are to compensate any victim who has sustained bodily injuries where a
driver caused damage by the negligent driving of a motor vehicle.77 This might seem
like a strange part of social insurance to discuss where migrant workers are involved,
but owing to the fact that most people in South Africa need to use some form of
transportation,78 it may be of importance to these individuals as well. One other
reason is that nationality plays no role in the eligibility of the victim to receive
compensation.79 The person who lodges a claim should only do so according to the
requirements of Act 56 of 1996.80
However, critics point out that social insurance for non-citizens in its current format is
problematic, as different government departments administer medical assessments
and the processing and payment of compensation. According to Olivier,
“[s]treamlined and uniform payment mechanisms for cross-border workmen’s
compensation payments are largely absent”.81
In summary, Olivier makes the valid statement that:
“[i]n terms of available best practice and existing international standards,
irregular or undocumented migrants who have made social insurance
contributions should be entitled to benefit from those payments or at least be
repaid the sums contributed if, for example, they are expelled from the
country.”82
3.3.4 Labour Security
The Labour Relations Act (LRA),83 Employment Equity Act (EEA)84 and the Basic
Conditions of Employment (BCEA)85 are the three main pieces of legislation that give
effect to the constitutional right to fair labour practices and labour security. The main
75
56 of 1996. Hereinafter Act 56 of 1996.
56 of 1996.
77
S 17 of Act 56 of 1996.
78
Private or public transport.
79
Millard (2008) AHRLJ 41.
80
Claims should be lodged within the required time period. Millard (2008) AHRLJ 41.
81
Olivier (2011) Part 1 SADC Law J 133.
82
Ibid 145.
83
66 of 1995.
84
55 of 1998.
85
75 of 1997.
76
42 © University of Pretoria
purposes of the LRA86 are, namely, to regulate and advance collective bargaining,87
establish labour dispute resolution institutions88 and protect workers against unfair
dismissal.89
The EEA plays a significant role in the achievement of equality in the workplace by
eliminating unfair discrimination, and it regulates the implementation of affirmative
action measures.90 According to section 3 of the EEA, the act must be interpreted in
fulfilment of the Constitution’s purpose. This must be done by taking into account any
code of good practice by the EEA and other relevant employment law. The
international obligations of the Republic of South Africa must be considered,
specifically those stated in the Discrimination (Employment and Occupation)
Convention, 1958 (No 111).91
The purpose of the BCEA is to establish and enforce basic conditions of
employment.92 The BCEA makes provisions for South Africa as a member state to
comply with the obligations of the ILO. The BCEA strives to give effect to the right to
fair labour practices as defined in the Constitution.93 All three legislative instruments
enhance social justice and provide some form of labour security.
The Constitution places more emphasis on the maintenance of a fair employment
relationship than labour security in general.94 This suggests that the focus of the
Constitution falls on the prevention of unfair employer-employee actions; it prevents
unfair discrimination and would not tolerate the unfair termination of employment. In
86
S 1 of the LRA provides as follows “[t]he purpose of this Act is to advance economic development,
social justice, labour peace and the democratization of the workplace by fulfilling the primary objects
of this Act, which are – (a) to give effect to and regulate the fundamental rights conferred by section
27 of the Constitution; (b) to give effect to obligations incurred by the Republic as a member state of
the International Labour Organization; (c) to provide a framework within which employees and their
trade unions, employers and employers' organizations can – (i) collectively bargain to determine
wages, terms and conditions of employment and other matters of mutual interest; and (ii) formulate
industrial policy; and (d) to promote – (i) orderly collective bargaining;(ii) collective bargaining at
sectoral level; (iii) employee participation in decision-making in the workplace; and (iv) the effective
resolution of labour disputes”.
87
Chapter II of the LRA.
88
Chapter VII of the LRA.
89
Chapter VIII of the LRA.
90
S 2 of the EEA.
91
S 3 of the EEA.
92
S 2 of the BCEA.
93
S 23 of the Constitution.
94
Ibid.
43 © University of Pretoria
terms of the LRA (and in broadly the same terms as the BCEA and the EEA) an
‘employee’ means:95
“(a) any person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled to receive, any
remuneration; and
(b) any other person who in any manner assists in carrying on or conducting
the business of an employer, and ‘employed’ and ‘employment’ have
meanings corresponding to that of employee.”
Although it does not fit under labour security in the stricter sense of the word, the
Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)96
applies to any individual not covered by the EEA. PEPUDA places a positive
obligation on the state, organizations and all persons to promote equality.97 It
focuses on the development of a democratic society guided by the principles of
equality, justice, human dignity, freedom, fairness, equity and social progress.98
Section 1 of PEPUDA lists prohibited grounds upon which no person may be
discriminated against.99 These grounds are one of the reasons why this act will be
applicable when dealing with migrant workers in South Africa.
When interpreting PEPUDA, the Constitution and the principles contained therein
must be the main focus and effect must be given to these fundamental principles.100
If there is any conflict between the interpretation of PEPUDA and any other act,
excluding the Constitution, PEPUDA will prevail over any other law.101 PEPUDA
makes no specific mention of migrants, non-citizens or any derivative of these terms.
Therefore, it will be applicable only to protect such individuals against unfair
discrimination on the grounds of their lack of citizenship and right to human dignity.
95
S 213 of the LRA, s 1 of the BCEA and s 1 of the EEA.
4 of 2000.
97
S 25 of PEPUDA.
98
Tanner (2012) 207.
99
According to s 1 of PEPUDA, ‘prohibited grounds’ are “(a) [r]ace, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth; or (b) any other ground where discrimination based on that other
ground – (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii)
adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is
comparable to discrimination on a ground in paragraph (a)”.
100
S 3 of PEPUDA.
101
Tanner (2012) 207.
96
44 © University of Pretoria
The Employment Services Bill (ESB)102 was published in 2010 by the National
Assembly.103 It is the cornerstone of a plan to facilitate larger state intervention in the
labour market. The purpose of the new Employment Services Act will be to promote
employment of South African citizens by improving access to the labour market;
people seeking job opportunities, by improving employment prospects of persons
with disabilities and employees who could possibly be retrenched; to facilitate the
employment of foreign nationals in a manner that is consistent with the objects of the
ESB104 and the South African Immigration Act; and by promoting employment
escalation and place of work efficiency.105
The ESB refers to a migrant worker as a “foreign national”.106 Article 2 of the ESB
indicates that one of the purposes of the act would be to:
“(h) facilitate the employment of foreign nationals in the South African
economy, where their contribution is needed in a manner - (i) that gives effect
to the right to fair labour practices contemplated in section 23 of the
Constitution; (ii) that does not impact adversely on existing labour standards
or the rights and expectations of South African workers; and (iii) that promotes
the training of South African citizens and permanent residents.”
The ESB aims to facilitate worker schemes to enable vulnerable work seekers to
enter employment and remain employed.107 Even though migrant workers would fall
within the vulnerable work seekers group, the ESB goes on to restrict the
employment of migrant workers without the necessary documentation.108 The ESB
seeks to protect the employment opportunities and conditions in South Africa for the
South African citizens and permanent residents. However, the ESB provides
protection to the migrant worker who is employed as an employee despite the lack of
102
The amended bill 38 of 2012 was recently introduced by the National Assembly (proposed section
75). Explanatory summary of ESB published in Government Gazette No 35844 of 2 November
2012
103
It was published in General Notice 1112 of 2010, GG 33873 of 17 December 2010.
104
S 5(1)(i) of the ESB.
105
The Preamble of the Employment Services Bill. See also the New Labour Bills Changes in the
Offing. Available at http://0-www.mylexisnexis.co.za.innopac.up.ac.za/nxt/gateway.dll/bc/k visited
on 2013/11/30.
106
In s 1 of the Employment Services Bill ‘‘foreign national’’ means an individual who is not a South
African citizen or does not have a permanent residence permit issued in terms of the Immigration
Act.
107
S 6 of the ESB.
108
The ESB determines the requirements for the employment of foreign nationals by stating in s 8(1)
that “[a]n employer may not employ a foreign national within the territory of the Republic of South
Africa prior to such foreign national producing an applicable and valid work permit, issued in terms
of the Immigration Act.”
45 © University of Pretoria
authorisation by stating that the employee is entitled to enforce any claim that he or
she may have in terms of any legislative instrument or contract of employment
against the employer.109
The introduction of the ESB is aimed at developing the Department of Labours’
public employment services. This enhancement would be established by the
regulation of private employment agencies, as well as the provision of legal status for
the Sheltered Employment Factories administered by the Department and
Productivity South Africa.110 The main means to achieve these aims would be the
comprehensive administration of public employment services by the Department of
Labour. The ESB would establish the much needed regulation of employment
services as to provide protection to all work seeking individuals regardless of their
migration status. However, it could be stated that this would place unnecessary
strain on the workload of the Department of Labour. The over-regulation could
threaten businesses and scare employers out of employing individuals due to the
risks associated with employment of new employees.111
Other acts that may be of importance when social protection for migrant workers in
the form of labour security is evaluated are: the Occupational Health and Safety Act
(OHSA)112 and the Mine Health and Safety Act113 (MHSA). The OHSA is applicable
when the duties of employees and employers need to be established. These include
the establishment of health and safety committees.114 The MHSA states that the
owner of a mine should ensure that the specific mine is in outstanding condition and
properly equipped in such a way that it is safe for the employees to perform their
duties there.115 The latter act is of importance when dealing with migrant workers,
owing to the fact that most of the migrants in South Africa are situated in the mining
sector,116 and that is also the sector in which the most deaths occur.117
109
S 8(4) of the ESB.
Modlin (2011) Professional Accountant 30.
111
Ibid.
112
85 of 1993.
113
29 of 1996.
114
Van Niekerket al (2012) 463.
115
S 2(1) of the MHSA.
116
Olivier (2011) Part 1 SADC Law J 134.
117
Ibid 130.
110
46 © University of Pretoria
3.3
THE COURTS: EXTENDING THE RIGHT TO SOCIAL PROTECTION
3.3.1
Introduction
The South African courts118 interpret legislation in line with their judicial authority.
When dealing with any legislation, the courts must give effect to the fundamental
principles listed in the Constitution. Furthermore, the courts must take international
law into account, and may consider foreign law.119 Any legislation, customary or
common law, must be in line with the principles contained in the Constitution,120 and
the courts should prefer a reasonable interpretation consistent with international
law.121Section 38 of the Constitution states that the courts must provide “appropriate
relief, including a declaration of rights”, while section 167 states that the courts may
provide any order that is “fair and equitable”. The court must determine the
boundaries of what is “appropriate, fair and equitable relief”.
The Constitutional Court’s decision in Fose v Minister of Safety and Security122
continues to give substance to what can be defined as appropriate, fair and equitable
relief. In Fose, the court held that appropriate relief will in its fundamental nature be
relief required to protect and implement the Constitution. The court stated that each
particular case’s circumstances would have an effect on the type of relief. This could
be in the form of a declaration of rights, a mandamus, an interdict or any other relief
required by the circumstances to protect the rights in the Constitution. It was also
noted that, if it is necessary, the court may even develop new remedies to insure the
enforcement of the impaired rights.123 As mentioned by Mbazira, the South African
courts have stayed within their judicial powers and limited rulings where they would
interfere with the other arms of the government.
The courts have wide remedial powers to assist individuals, but can only apply these
if the matter is brought before a court and if there are available resources.
Unfortunately, migrants rarely have the resources and ability to bring matters before
courts when dealing with social protection. The cases that have reached the South
118
A court can be the Constitutional Court acting in accordance with s 167(6)(a) of the Constitution, a
Court, a Magistrate’s Court or another court with a similar status to these courts.
119
S 39(1) of the Constitution.
120
S 39(2) and (3) of the Constitution.
121
S 233 of the Constitution.
122
1997 7 BCLR 851 (CC).
123
Fose par 19. See also Mbazira (2011) SAPL 64.
47 © University of Pretoria
African courts will now be evaluated in accordance with the concept of social
protection as defined in Chapter 2. Social assistance and social insurance will be
discussed under the heading of socio-economic rights, since, in the cases under
discussion, the court focused on section 27 of the Constitution124 as a whole. The
portability of benefits within the South African social protection system has not
enjoyed any attention in jurisprudence.125
3.3.2 Socio-economic Rights
Socio-economic rights require the courts to be open-minded when interpreting these
rights in individual cases.126 The following four Constitutional Court cases concerning
socio-economic rights will be discussed in this chapter: Soobramoney v Minister of
Health,
KwaZulu-Natal,127Government
Grootboom,
of
the
Republic
128
of
South
129
Minister of Health v Treatment Action Campaign (TAC)
Africa
v
and Khosa v
Minister of Social Development.130 According to Wesson, Grootboom is the most
significant,131and TAC and Khosa draw heavily upon the judgment in Grootboom.132
It could be said that the court set the foundation for future assessment of socioeconomic rights in Grootboom.
In Soobramoney v Minister of Health, Kwazulu-Natal,133 the tension between the
realization of human rights and available resources was considered. In
Soobramoney, the appellant was a diabetic who suffered from an irreversible heart
disease. He asked to be admitted to a state hospital and he was informed that he did
not qualify for admission. There was a severe shortage of dialysis machines. The
hospital only admitted those patients who could be cured. The appellant claimed that
he had a right to receive emergency medical treatment from the hospital in terms of
section 27(3) of the Constitution.134
124
Referred to in the court cases as s 26 of the Interim Constitution. This section is identical to s 27 of
the Constitution.
125
Becker and Olivier (2008) 145.
126
Mbazira (2011) SAPL 62.
127
1998 (1) SA 765 (CC).
128
2001 (1) SA 46 (CC).
129
2002 (5) SA 721 (CC).
130
CCT 12/03 and2004 (6) SA 505 (CC).
131
Wesson (2004) SAJHR 284.
132
Ibid 285.
133
1998 (1) SA 756 (CC). Hereinafter Soobramoney.
134
The facts of this case will be discussed in full later in Chapter 3 of this dissertation.
48 © University of Pretoria
Relying on section 27(2) of the Constitution, the Constitutional Court held that the
state has a constitutional obligation “within its available resources” to provide health
care in emergency conditions.135 The court acknowledged that the rights imbedded
in section 27 of the Bill of Rights do not focus on nationality, as the right extends to
“everyone”. The court’s approach was against a generous awarding of socioeconomic rights, by not forcing the obligation to uphold the right without recognizing
the availability of resources.
In Soobramoney136 it was held that the state needs to focus on the broader
community as a whole rather than the individual. The court indicated that, with
regard to chronically ill individuals, the patient needs to meet certain conditions. It
simply seems unreasonable to expect someone who urgently needs medical
attention to be waitlisted until everyone in the country is provided with food, water
and so on.137
The Constitutional Court reached the conclusion that “a court will be slow to interfere
with rational decisions taken in good faith by the political organs and medical
authorities whose responsibility it is to deal with such matters”.138 It is said that in
terms of remedies, the Constitutional Court chose a weak remedy, instead of a more
personal remedy.139 The Constitutional Court acknowledged that the Constitution
should not be read in isolation, but in context, including its political and historical
development.140 Furthermore, the court held that the state has a constitutional
obligation “within its available resources” to provide health care in emergency
conditions.141 However, the court concluded that the Department of Health did not
have sufficient funds to cover the cost of services being provided to the public and
that there was no breach of the constitutional guarantees contained in the
Constitution.142
135
Soobramoney par 11.
1998 (1) SA 765 (CC).
137
Wesson (2004) SAJHR 303.
138
Soobramoney par 29.
139
Mbazira (2011) SAPL 66.
140
Soobramoney par 16 and also see Makwanyane par 9 – 10.
141
As stated in s 27(2) of the Constitution.
142
Soobramoney par 11.
136
49 © University of Pretoria
Soobramoney was the first case concerning socio-economic rights brought before
the Constitutional Court. The approach in Soobramoney has since then largely been
abandoned.
In the case of Government of the Republic of South Africa & Others v Grootboom&
Others,143 the respondents were left homeless as a result of their eviction from their
informal homes, situated on private land earmarked for low-cost housing. They
applied for an order requiring government to provide them with adequate basic
housing until they obtained permanent accommodation.144The case was appealed in
the Constitutional Court, and the decision of the High Court was set aside. Despite
not dealing directly with section 27 of the Constitution, the claimants in Grootboom
were granted relief, and the court stated that the Constitution does make provision
for civil, political, social and economic rights. It was further mentioned that the
fundamental values of our community are underpinned by the right to freedom,
human dignity and equality, and those without safe havens and food are denied
these values.
This case was groundbreaking with regard to the extension of socio-economic rights,
and included a promise to all people living in harsh conditions beneath the minimum
standards breadline.145 The court adopted a more generous approach and extended
socio-economic rights to all individuals, allowing them to enjoy the human rights in
the Bill of Rights.146 The Constitutional Court further indicated that the key to the
fulfilment of these socio-economic rights is the standard of reasonableness.
The court, through evaluation of the facts against the background of the Constitution,
indicated that the state violated the Constitution147 by not having an appropriate
program in place.148 The court focused on the ‘reasonable programme’ test. In
Grootboom, the court took the measures taken by the state into account and
143
2000 (11) BCLR 1169 (CC).
S 26 of the Constitution, which provides that everyone has the right of access to adequate
housing. S 26(2) imposes an obligation upon the state to take reasonable legislative and other
measures to ensure the progressive realisation of this right within its available resources.
145
Mbazira (2011) SAPL 60.
146
Grootboom par 23.
147
S 26 of the Interim Constitution.
148
Grootboom par 99.
144
50 © University of Pretoria
declared that the content of these measures are primarily a matter for the legislature
and the executive. The court’s duty is not to determine whether or not measures
could have been adopted, but whether the adopted measures are reasonable.149 The
courts have since favoured the Grootboom150 approach, as it was used as the basis
of numerous cases that followed.151
In Khosa v Minister of Social Development; Mahlaule & Others v The Minister of
Social Development & Others,152 Mozambican citizens who had acquired permanent
residence status in South Africa153 applied for social assistance under the SAA. They
would have qualified for grants but for the fact that they were not South African
citizens.154 They relied on section 27 of the Constitution, which provides “everyone”
with the right to access to social security, and in section 9 it guarantees everyone the
right to equality. In Khosa, the judiciary once again emphasized the importance of
the different arms of government when dealing with the awarding of socio-economic
rights.155 The reference to the doctrine of separation of powers in Khosa156 is implicit.
In this case, the doctrine is seen in the argument made by Justice Mokgoro that the
non-citizens’ minority rights should be protected against the oppression of the
majority.157
149
Grootboom par 41. In a more recent case, the Constitutional Court once again emphasized the
need for the different forms of government to stay within their constitutional jurisdiction. Motswagae
and Others v Rustenburg Local Municipality and Another [2013] ZACC 1 (CCT42/12) started as an
application for an interdict in the North West High Court, Mahikeng. The application was brought
because the Rustenburg Local Municipality authorised construction work on property occupied by
the first applicant. This involved excavation of land by the use of a bulldozer right next to the outer
wall of the first applicant’s home, exposing the foundations of the building. The question before the
court was whether the municipality acted lawfully in authorising this work on the property without
obtaining a court order for the eviction of the applicants. The court dealt with s 26 of the Constitution
which contains the right of housing to everyone. The court granted these applicants leave to appeal
and stated in par 17 that “[i]t is trite that the municipality must act reasonably at every stage in the
process of providing housing to people within its jurisdiction. Unconstitutional conduct cannot, by
definition, qualify as reasonable conduct.”
150
2001 (1) SA 46 (CC).
151
TAC and Khosa case.
152
2004 (6) SA 505 (CC). Hereinafter Khoza.
153
In terms of exemptions granted to them under the now repealed Aliens Control Act 96 of 1991.
154
Khoza par 2 and 3.
155
Becker and Olivier (2008) 171.
156
2004 (6) SA 505 (CC).
157
Khosa par 71 the court made reference to the case of Larbi-Odam. In this case it was held that
“[w]ith regard to the vulnerability of permanent residents, the court in Larbi-Odam found that first,
foreign citizens are a minority in all countries, and have little political muscle. Secondly, the court felt
that citizenship is a personal attribute which is difficult to change.” Also see Becker and Olivier
(2008) 171.
51 © University of Pretoria
The court held that the rights to social security are vested in “everyone”, and that
permanent residents are bearers of this right. The court read the words “or
permanent resident” after the word “citizen” in each of the challenged sections of the
SAA. However, the court was not prepared to extend the constitutional right to social
security to irregular migrants. It could be argued that the court has not done enough
in the Khosa case and that it missed a golden opportunity to extend the social
security protection (in respect of social assistance in particular) to irregular migrants.
The statement158 mentioned in Grootboom was affirmed in Khosa, and the court held
that the socio-economic rights in the South African Constitution are closely related to
the founding values of “human dignity, equality and freedom.”159 Consequently, in
Khoza, the court held that the provisions that limited the provision of social grants to
citizens contravened the norms of the Constitution and extended the right to social
protection to all persons with permanent residence. The court held that the necessity
to provide access to social assistance to people permanently residing in South
Africa, as well as the impact on their right to life and dignity should this be denied,
outweigh the financial impact on the state.160
The government argued that all non-citizens ought to be excluded, because the
constitutional imperative was linked to “available resources”. The court rejected this
argument and did not extend the right to social security to all non-citizens. The court
held that it would be reasonable to exclude irregular or undocumented residents who
have a tenuous link to the country.161 The court also held that owing to the fact that
158
Grootboom par 23.
Khoza par 40.
160
Khosa par 82. The court stated that “[i]n my view the importance of providing access to social
assistance to all who live permanently in South Africa and the impact upon life and dignity that a
denial of such access has, far outweighs the financial and immigration consideration on which the
state relies”.
161
Khoza par 46 – 47. At par 59 the court held that “[i]t 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
159
52 © University of Pretoria
the additional costs would at most amount to 2% of the overall government
expenditure on social grants, the state’s argument that it would be overburdened
was unacceptable.162
Even though non-citizenship was subjected to constitutional challenge in Khosa
under access to social assistance in terms of the SAA,163 the court still only restricted
the provision of grants to permanent residents. These grants were not extended to
temporary residents and irregular migrants.164 The directives of the Constitutional
Court were incorporated into the regulations implementing the Act.165 The judgment
in Khosa is in line with the rights integrated into the Constitution, as well as the
international approach.166 Despite this it was pointed out by Dekker that criticism has
been levelled against the Khoza decision, and this highlights the difficulty the courts
are facing in balancing the realization of human rights and maintaining adequate
resources to fund the social protection system as a whole.167
According to Brand and Heyns, even though in both Grootboom and Khosa the court
followed different tests168 to determine the realization of social-economic rights for
the claimants, some important indicators were identified.169 These are, inter alia, the
position of the claimants in society, their degree of deprivation and the extent to
which there was a breach of their rights. A further factor is how it affected their right
to human dignity.
It is acknowledged that in Khosa the court acted nobly in extending social assistance
to non-citizens.170 However, this intended noble act places an additional burden on
the welfare-spending obligations of the state.171 The exact financial impact of this
judgment is still unclear, considering the fact that the exact number of non-citizens
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”.
162
Khoza par 60.
163
S 5(1)(c) of SAA (as amended).
164
See also Mpedi and Smit (2011) 10.
165
Regulation No. 31356 Goverment Gazette. 22 August 2008 SAA. Mpedi and Smit (2011) 154.
166
Strydom et al (2006) 302. See discussion about international norms in Chapter 2.2.3.
167
Dekker (2010) SA Merc LJ398.
168
Khosa followed a stricter proportionally test, while in Grootboom a stringent means-end
effectiveness test was applied.
169
Brand and Heyns (2005) 45.
170
Becker and Olivier (2008) 165.
171
Khosa par 58 – 62.
53 © University of Pretoria
cannot be determined. Justice Ngcobo, writing on behalf of the minority, begins by
assuming that the availability of benefits to non-citizens might increase the migration
to South Africa.172 He goes on to state that:
“[t]he fact that the increase is not huge is not relevant. The fact of the matter
is that there will be an increase; how huge that increase will be, will be
determined by an increase in the number of permanent residents. What
makes it difficult to predict the number of persons who might qualify, is that
there is no clear information about the number of people who might qualify
under a more generous immigration regime. And if there is merit in the
possibility that the State could become a magnet for new immigrants seeking
permanent resident status, estimating the likely size of the pool of grant
applicants and an accurate estimate of the financial burden would be even
more arduous a task.”173
In Minister of Health and Others v Treatment Action Campaign and Others174the
government had instituted a policy whereby an antiretroviral drug, Nevirapine, was
made available only in certain research sites within the public health sector This was
done to test the efficacy of the program in preventing mother-to-child transmission of
HIV. The respondents had approached the High Court for an order obliging the
government to make this drug widely available within the public health sector, as the
program was denying those who did not have access to the research sites access to
the drug.175
The court again gave an indication of relying on weaker remedies.176 The court
issued a declaration, which was later changed into a mandatory order, requiring the
state to remove the restrictions on the reasonable programs relevant to the matter at
hand.177 Despite the court’s declaration and indications that it is willing to extend a
helping hand to the suffering members of society, not enough is being done. A
supervisory order was dismissed by the court,178 as it suggested that the government
has always respected the court’s orders and that they had no reason to believe
otherwise.179
172
Khosa par 121 and 124.
Khosa par 129.
174
2002 (5) SA 717.
175
TAC par 1 – 12.
176
Mbazira (2011) SAPL 67.
177
TAC par 135(3).
178
Mbazira (2011) SAPL 68.
179
TAC par 129.
173
54 © University of Pretoria
A case that was considered by the courts a few years after Grootboom could also be
of importance. It does not deal with the concept of social protection or migrant
workers directly, but it gives an indication of social protection in the country and the
power the court has if it is willing to extend its judicial functions. In Occupiers of 15
Olivia Road v City of Johannesburg,180300 residents of neglected buildings in
Johannesburg approached the court on the grounds that they would be evicted by
the City of Johannesburg. The City’s argument was that it had initiated a program to
revamp the City by rehabilitating neglected buildings. The High Court provided relief
for the applicants by stating that the City did not provide these individuals with
alternative accommodation. It indicated that the program did not satisfy the
requirement to provide for those in crisis and those in desperate need of housing.
The court granted an interdict against the eviction.181
The Supreme Court of Appeal (SCA) agreed with the City that the buildings were
unsafe and authorized the eviction. The SCA ordered the City to provide temporary
shelter for those in desperate need. The occupiers appealed to the Constitutional
Court.182 The Constitutional Court ordered the parties “to engage with each other
meaningfully[i]n an effort to resolve the differences and difficulties aired in this
application.”183 This is where the idea of meaningful engagement found its origin.184
The court also focused on the question of whether the City satisfied the requirements
set out by section 26185 and Grootboom.
The court, in Olivia, created a new remedy by using a stronger structural remedy.
According to the court, the state has a constitutional responsibility to facilitate the
participation of communities and their organizations in local government.186 The
judgment expanded the remedial powers of the court and set a new precedent for
individuals to challenge government actions.187 This approach is founded on the
question of whether the community was reasonably engaged in the discussion by the
180
2008 5 BCLR 475.
See City of Johannesburg v Rand Properties (Pty) Ltd 2007 1 SA 78 (W); 2006 6 BCLR 728 (W).
182
See City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 SA 417 (SCA); 2007 6 BCLR 643
(SCA).
183
Olivia par 5.
184
Mbazira (2011) SAPL 73.
185
Interim Constitution.
186
Olivia par 16.
187
Mbazira (2011) SAPL 74.
181
55 © University of Pretoria
state or another authority.188 It is suggested that this could be a good approach when
dealing with social protection for migrant workers. These individuals form part of the
community, and as a whole the community could make useful contributions to
solving the problems associated with the social protection of migrant workers.
The inclusion of vulnerable groups and the extension of socio-economic rights, for
example, open the door to a discussion of the powers of the court. The question of
whether fundamental socio-economic rights are enforceable against the state
arises.189 In the approach adopted by the Constitutional Court, it is indicated that the
courts with constitutional jurisdiction may grant declaratory as well as mandatory
orders.190 The courts can order the state to act positively and enforce the social
protection rights. The socio-economical rights in the Constitution are justifiable,
despite the financial and budgetary implications they carry.191
3.3.3 Labour Security
Labour security is not recognized as a distinct concept by South Africa. It is
integrated into the social protection and labour law of the country. Therefore, the
interpretation of the courts is significant in this issue. Through the decisions of the
courts, social protection in the form of labour security is being developed. Some of
these court cases will be discussed with the aim of evaluating the limitations and the
extensions developed by the court. One of the main reasons why the extensions
developed by the courts are needed with regard to migrant workers is the
presumption that migrant workers provide cheaper labour than South African
citizens.192
In Larbi-Odam & Others v Member of the Executive Council for Education (NorthWest Province) &Another193 the Constitutional Court considered whether the
regulations dealing with the employment of educators, which limited the appointment
of educators to South African citizens, were in compliance with the Constitution. The
188
Ibid.
Becker and Olivier (2008) 178.
190
Declaratory orders are orders that determine what the rights of the parties are, while mandatory
orders can order a party to act in a particular way. See Becker and Olivier (2008) 179.
191
This position has been affirmed in TAC case par 25, and as a whole.
192
Van Niekerket al (2012) 483.
193
1997 (12) BCLR 1655 (CC).
189
56 © University of Pretoria
court recognized that foreign teachers are a vulnerable group on the grounds that:
citizenship is a personal attribute which is difficult to change, these individuals are a
minority and they have little political muscle. The court held that discrimination on the
basis of citizenship in the context of permanent residents amounted to unfair
discrimination.194 Although the court did not reach a final conclusion pertaining to
temporary residents, it did conclude that their position is precarious. However,
considering that the regulation did allow for temporary residents to be disadvantaged
more than permanent residents, the court found this could cause injustice and the
regulation was invalidated in its entirety.
In Discovery Health Ltd v CCMA,195 the question arose whether a contract of
employment concluded in contravention of the Immigration Act196was rendered null
and void, with the consequence that the employee could no longer claim protection
in terms of the LRA. The worker, an Argentinean national, was dismissed when his
employer found out that he was not legally permitted to work for that company in
terms of the Immigration Act. The employee referred an unfair dismissal dispute to
the CCMA. The employer argued that only an employee, as defined in terms of the
LRA, may claim the protections afforded by the Act.197 It was further contended that
the statutory definition states that an employee must be a party to a valid contract of
employment.198
The court concluded that even though a contravention of the Immigration Act
constitutes a criminal offence, it does not invalidate the underlying contract of
employment and the worker still remains an employee in terms of the LRA. To this
the court added that even if the contract was not valid, the definition of ‘employee’
does not presuppose a valid contract of employment. Even though his claim was for
unfair dismissal, the consequence of the court’s approach was that the definition of
an employee was extended to include the protection of an irregular migrant.199
194
At par 31 the court held that “[t]hus, it is simply illegitimate to attempt to reduce unemployment
among South African citizens by increasing unemployment among permanent residents.”
195
2008 ILJ 1480 (LC).
196
13 of 2002.
197
This definition was mentioned in the previous discussion of the different legislation.
198
Discovery Health(ILJ) par 3.
199
Dekker (2010) SA Merc LJ 399.
57 © University of Pretoria
Although this case did not deal with social security legislation in the stricter sense of
the word, it is submitted that the Discovery Health (ILJ) principle can apply to such
legislation as well. The court did not consider the question of whether employees
who return to their country of origin are still entitled to protection in terms of labour
and social security legislation. In Discovery Health (ILJ), the court stated that there is
tension between the right of states to protect their labour markets and the
fundamental rights of those who seek work in other countries.200
In the context of social protection, Van Niekerk stated that globalization has an
intense effect on global migration and has caused the number of people who migrate
to different countries to increase considerably. He indicates that some of the reasons
for this movement are escaping poverty, unemployment and, inter alia, economic
and social demands in migrants’ countries of origin.201 However, in the sense of
general social protection, it is submitted that the right to social protection should
rather be extended than limited, which would exclude certain individuals from
protection.202 The court’s decision made an indication that the court should consider
the international movement towards extending labour legislation to defenceless
employees.203
The definition of employee was also provided a broad interpretation in “Kylie” v
CCMA.204 In this instance, the claimant was a sex worker who was employed in a
massage parlour to perform sexual services for a reward. The worker was informed
that her employment had been terminated without prior hearing.205 The Labour
Appeal Court held that the worker was entitled to protection under labour law,
although she was not entitled to all of the remedies afforded to other workers under
the LRA. Davis held that the definition of employee in section 213 of the LRA was
wide enough to include a person whose contract of employment was unenforceable
in terms of the common law.206
200
Kapindu (2011) AHRLJ 100.
Discovery Health (ILJ) par 45.
202
Dekker (2010) SA Merc LJ 401.
203
Van Niekerket al (2012) 80.
204
[2010] 7 BLLR 705 (LAC) par 16 and 20.
205
“Kylie” par 1 – 2.
206
“Kylie” par 3.
201
58 © University of Pretoria
Social protection was not dealt with specifically in either the Discovery Health (ILJ)or
“Kylie” cases. However, because the court in “Kylie” stated that illegal workers
should be awarded the rights enshrined in the Constitution, it could be said that they
are not excluded from social rights. In Discovery Health (ILJ), the court extended
social protection to irregular migrant workers. Even though there are significant
differences between labour security and social insurance legislation (such as the fact
that the latter places significant financial burdens on the state) both of these cases
can be interpreted to extend rather than limit the scope of the application of the
relevant legislative instruments.207
3.4
CONCLUSION
The South African social protection framework has severe limitations. Social
assistance does not extend to temporary residents (Khoza) or irregular migrants, and
social insurance generally does not apply to individuals who return to their country of
residence. However, there are some positive, but limited, developments in relation to
compensation for occupational injuries and diseases. The exclusions of the
legislation regarding social insurance have a direct impact on the informal social
security system.208 The informal social security system is the only safetynet left for
those individuals who are disqualified from formal social protection by the related
acts.
Despite the fact that government officials have consistently argued that social
protection should only be granted to citizens, the Constitutional Court has extended
the entitlement to social protection to permanent residents (Khoza) and has struck
down
regulations
discriminating
against
temporary
residents
(Labri-Odam).
Nevertheless, at this stage, there are no indications that the Constitutional Court
would be willing to extend social protection in the form of social assistance and
social insurance to irregular migrants.
As mentioned, the comprehensive definition of social protection (regardless of which
organization’s definition is being referred to) is wide enough to include labour
security. It is important that this fact be recognized in South Africa, since social
207
208
Olivier (2011) Part 1 SADC Law J 144 – 145.
Dekker (2005) 62.
59 © University of Pretoria
protection generally starts in the workplace, where workers spend the majority of
their working lives.209 This, together with the necessary changes to relevant labour
legislation in South Africa, is a positive development and is exactly what is needed to
improve the position of migrants in terms of social protection in the country in which
they reside.
The courts have indicated a willingness to extend labour security provisions to
irregular migrants (Discovery Health (ILJ) and “Kylie”) in the sphere of labour
security. It is submitted that the broadening of protection in labour security could, in
future, play a significant role in extending the coverage of other branches of social
protection (social assistance and social insurance) to irregular residents as well. This
extension could serve as the foundation for providing social protection to those
migrants who work in the host country, and therefore make a contribution to the
particular country’s labour economy.
Labour legislation does not exclude migrants, and where there was uncertainty the
courts have extended the scope of application of these acts to migrants and those
who have not entered valid contracts of employment. This has occurred against the
background of the Constitution and its human-rights culture. South Africa could focus
on its well-developed labour legislation to extend social protection in the form of
labour security to irregular migrants, and move a step closer to the Constitution’s
idea of protection that extends to “everyone”. It would also be to the advantage of the
South African government to promulgate the different bills introduced to amend the
labour legislation in South Africa. Furthermore, if the social insurance system could
be extended, even slightly, it will have a positive impact on limiting the reliance on
informal social protection210 in this country.
Even though it is clear that the courts would not be willing to extend the right to
social protection to irregular migrants, the numerous factors set out in the different
court
decisions,
as
well
as
available
financial
resources,
are
important
considerations when dealing with the awarding of social protection to at-risk groups
209
Recommendation Concerning HIV and AIDS and the World of Work, 2010 (No. 200) International
Labour Office,Geneva.
210
In the form of informal social security.
60 © University of Pretoria
such as irregular migrants. Even though all categories of migrant workers cannot rely
on social protection in South Africa, the one fact that remains clear is that they have
the right to the protection of their general right to human dignity.
61 © University of Pretoria
CHAPTER 4
THE LEGAL STATUS OF MIGRANT WORKERS
4.1
INTRODUCTION
62
4.2
THE CONCEPT OF MIGRATION
63
4.3
CATEGORIES OF MIGRANT WORKERS
65
4.4
THE REGULATION OF MIGRANTS
67
4.4.1 International Instruments
67
4.4.2 National Instruments
73
4.4.2.1 Introduction
73
4.4.2.2 The Aliens Control Act and Refugees Act
74
4.4.2.3 The White Paper on International Migration
76
4.4.2.4 The Immigration Act
77
4.5
CONCLUSION
4.1
INTRODUCTION
80
Migration is a concept known in most countries and regions.1 In the SADC region
and elsewhere in the world, migrants seek better living standards in countries with
stronger economies. The Constitution of the Republic of South Africa, 1996 (the
Constitution), recognizes the right to freedom of movement.2 This entails that
everyone has the right to leave the country, regardless of whether they are citizens
or migrants within the borders of South Africa. Freedom of movement is one of the
rights most associated with the flow of migrants between countries. This right is also
acknowledged by international standards.
The preamble to the Migrant Workers (Supplementary Provisions) Convention, 1975
(No 143)3 states that while developing the convention everyone was considered to
have the right to leave any country, including his or her own, and to enter such
1
2
3
Kalitanyi and Visser (2010) SAJEMS 377.
S 21 of the Constitution provides that “(1) [e]veryone has the right to freedom of movement; (2)
Everyone has the right to leave the Republic; (3) Every citizen has the right to enter, to remain in
and to reside anywhere in, the Republic; (4) Every citizen has the right to a passport”.
Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of
Opportunity and Treatment of Migrant Workers. Entry into force 9 Dec 1978.Hereinafter Convention
143 of 1975.
62 © University of Pretoria
country, as set forth in the Universal Declaration of Human Rights, 1948 and the
International Covenant on Civil and Political Rights4.
When dealing with the concept of social protection, specifically with regard to migrant
workers, the concept of migration and the terms associated with it need to be
evaluated. As indicated by the definition of social protection,5 it is a wide concept and
protects individuals in different ways in terms of their needs and status. Generally,
migrant workers are not protected in the same way as citizens of a country.6 Each
country has their own legislative instruments, implemented within their justice
system, to regulate migration and migrant workers. Olivier notes that in most
countries migration law is deemed superior to social protection or labour laws.7 This
has implications for the social protection, if any, afforded to migrant workers.
In this chapter, the idea of migration will be evaluated to establish a generally
acceptable conception for the purposes of this dissertation. There are different
categories of migrants in each country, which could differ due to influencing
circumstances.8 Only the categories associated with migrant workers will be
considered during the assessment of the concept of migration. The international
standards that have influenced the development of the regulation of migration in
South Africa will also be dealt with briefly. The legislative instruments concerning
migration in South Africa will be examined to indicate how migration in and out of
South Africa is regulated. The impact of migration legislation on the social protection
of migrant workers will also be considered.
4.2
THE CONCEPT OF MIGRATION
Migration is no longer a concept that needs to be accepted or rejected, but is rather
an existing concept that needs to be dealt with on a daily basis. It is one of the
fundamental and inevitable components of the economic and communal life of
4
No 14668. Adopted by the General Assembly of the UN on 19 December 1966.
See Chapter 2.
6
This is seen in the conditions and the establishment of bilateral and multilateral agreements. See the
comparative chapter (Chapter 5). See also legislative instruments such as: ss 2(1) and 5(1)(c) of
the Social Assistance Act 13 of 2004 and s 231(2) of the of the Constitution and the Unemployment
Insurance Act 63 of 2001.
7
Olivier (2012) Part 2 SADC Law J 131.
8
These circumstances could, for example, be in times of war or due to a cataclysm (an act of God).
5
63 © University of Pretoria
individual countries and broader regions.9 Migration is relevant to humans and
animals. Generally, animals migrate in order to survive. This is also appropriate for
humans.
The factors affecting the flow of migration used to be the availability of food, shelter,
better weather conditions or safety. During our current times, these are still
motivating factors, although new reasons, such as overpopulation and job relocation,
also play a role. A number of authors maintain that there is no universally accepted
definition for migration.10 However, the one aspect that is clear is that the definition of
migration should not be limited to the movement of individuals between countries,
but should also include movement within the borders of a specific country. Kalitanyi
and Visser define migration as “the movement of people across country (and state)
lines, for the purpose of establishing a new place or seeking peace and stability”.11
This definition is deemed to be appropriate for purposes of this chapter and the rest
of this dissertation.
There are different forms of migration, such as economic or labour migration. Labour
migration could be divided into unskilled and skilled labour migration, as well as
business migration. Other forms of migration include migration associated with family
reunion and refugees. Refugees can be divided into conventional refugees12 and
asylum-seekers.13 Labour migration focuses specifically on migrant workers. These
individuals move between countries in search for employment. This form of migration
is aided by improved transportation and communication systems around the world.
According to Dupper, labour migration is affected by so-called “push” and “pull”
factors. Migrant workers leave their country in search of better living conditions and a
brighter future. Poor living and working conditions are push factors, while the
9
Kalitanyi and Visser (2010) SAJEMS 377.
See Kalitanyi and Visser (2010) SAJEMS 377 referring to Goetz, Migration and local labour markets
(1999) The web book of regional science, Penn State University 18 and Helton People movement:
The
need
for
world
migration
organization
(2003)
available
on
http://www.cfr.org/publication/5950/people_movement.html visited on 2013/06/10.
11
Kalitanyi and Visser (2010) SAJEMS 377.
12
According to the Geneva Convention.
13
Becker and Olivier (2008) 123.
10
64 © University of Pretoria
availability of decent work is a pull factor.14 In modern times, migration is regarded as
a type of career, rather than a passing phase to improve living standards.15
4.3
CATEGORIES OF MIGRANT WORKERS
There is no commonly accepted concept of a migrant worker. Different international
standards aim to provide a definition when dealing with international migration. The
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families, 1990 defines a migrant worker as “a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a State of
which he or she is not a national”.16
The categories of migrants recognized in South Africa are: permanent and temporary
residents, refugees and asylum-seekers, and irregular or undocumented noncitizens.17 A permanent resident is a non-citizen who has been granted permission to
reside in the country indefinitely.18 According to a number of South African
Constitutional Court judgments, permanent residents are given the same treatment
afforded to nationals.19 A temporary resident is a non-citizen who has been granted
permission to enter and/or reside in South Africa for a specific period of time.20 An
example of temporary residents would be workers who have entered into labour
agreements, which are normally enforceable for between 12 and 18 months.
Temporary residents are issued a permit to reside in the country for a certain period
of time on the condition that the non-citizen is not a “prohibited or undesirable
person”.21
14
Dupper (2007) Stell LJ 219.
Olivier (2011) Part 1 SADC Law J 125.
16
A 2 of International Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families, 1990.
17
As stated in the previous chapters the term ‘irregular migrants’ will be used to describe
undocumented or illegal immigrants or any derivative of these terms. See also the Immigration Act
13 of 2002 and the Refugees Act 130 of 1998 for the categories of migrants recognized in South
Africa.
18
Olivier (2011) Part 1 SADC Law J 136.
19
Larbi-Odam v Member of the Executive Council for Education (North-West Province) & The Minister
of Education 1998 (1) SA 745 1655 (CC); Khosa & Others v The Minister of Social Development &
Others; Mahlaule& Others v The Minister of Social Development & Others 2004 (6) SA 505 (CC).
20
Olivier (2011) Part 1 SADC Law J 136.
21
S 29 and 30 of the Immigration Act 13 of 2002.
15
65 © University of Pretoria
Refugees are individuals who have been granted asylum within the South African
borders in accordance with the Refugees Act.22Asylum-seekers, on the other hand,
are persons who are seeking recognition as a refugee or whose refugee status in
South Africa has not been confirmed. When dealing with refugees, the Refugees Act
should be read together with international standards.23 The social protection
available to asylum-seekers is limited. It is difficult for these individuals to gain
access to social protection until their status as a refugee has been determined.24
They are excluded from the social security system in South Africa, and especially
social assistance, but are allowed to work and study.25
An irregular or undocumented non-citizen is a person within the South African
borders without the necessary permission to stay in the country or who is in the
country in contravention of immigration laws.26 This includes persons who have
entered the country without the appropriate documentation, such as a visa or permit,
or even an individual who resides in the country beyond the date on the visa or
permit issued to them. Irregular migrants are regarded as illegal non-citizens and will
be deported when arrested. Irregular migrants form part of specific vulnerable groups
maltreated in migrant-receiving countries.27 The irregularity of this group of migrants
is not a permanent migration status. It may be remedied, either when the migrantreceiving country changes the status of the migrant or when the migrant worker
returns to an area where his or her stay is permitted.28 In South Africa most of the
irregular migrants migrate from Swaziland, Angola, Mozambique and Zimbabwe.29
22
130 of 1998. S 1(iv), (v) and (xv). Furthermore, a 1A(2) of the Convention Relating to the Status of
Refugees, 1951 (modified by the 1967 Protocol) defines a refugee as a person who, “[o]wing to
well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular
social group or political opinions, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country”. See also Dupper (2007) Stell
LJ 221.
23
S 1A of the Refugees Act indicates that it should be interpreted and applied consistent with – (a)
the 1951 UN Convention Relating to the Status of Refugees;(b) the 1967 UN Protocol Relating to
the Status of Refugees; (c) the 1969 OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa;(d) the 1948 UN Universal Declaration of Human Rights; and(e) any domestic
law or other relevant convention or international agreement to which South Africa is or becomes a
party.
24
Olivier (2011) Part 1 SADC Law J 139.
25
Minister of Home Affairs & Others v Watchenuka & Another [2004] 1 All SA 21 (SCA). See also
Olivier (2011) Part 1 SADC Law J 139.
26
Olivier (2011) Part 1 SADC Law J 139.
27
Smit (2007) TSAR 712.
28
Noted by Dupper (2007) Stell LJ 223.
29
Van der Elst (2011) TGW 144 and 145.
66 © University of Pretoria
Migrant workers tend to perform migrant or flexible jobs.30 These migrants often
suffer poor working conditions that are much worse than the working conditions of
their country’s own citizens. One of the continuities South Africa has with its past is
that most of the migrant workers entering South Africa are unskilled or semi-skilled
workers.31 The unauthorized status of irregular migrant workers tends to make them
more vulnerable and subject to deportation or arrest at any time. They have limited
or no access to social benefits and labour rights. Even if in some instances they do
have certain rights afforded to them, these migrants will generally not rely on these
rights, owing to the fear of being prosecuted by the authorities.32 There is an
apparent link between migration policies in different countries and access to social
protection, as irregular migrant workers and asylum seekers are commonly excluded
from social security.33
4.4
THE REGULATION OF MIGRANTS
4.4.1 International Instruments
According to Millard:
“[m]igration has to be managed on two levels, namely, politically, by
harmonizing the laws that deal with immigration, and on a social protection
level, by aligning the protection measures that exist at a national level.”34
The matter of citizenship is generally regulated by the receiving-country’s national
laws specifically relating to migration. The territorial sovereignty of each country
plays a significant role, and it is acknowledged that each state has the power to
regulate the physical domain of the country with regard to international law.35
Therefore, countries are allowed to set limitations on the use of their country by noncitizens. This principle is reflected by the International Convention on the Protection
30
Dupper describes migrant jobs or so called flexible jobs as “jobs that are dirty, dangerous and
difficult (so-called ‘3-D’ jobs), which once they become ‘migrant jobs’, tend to remain migrant jobs.”
Dupper (2007) Stell LJ 220. See also International Labour Office Towards a Fair Deal for Migrant
Workers in the Global Economy (2004) 10.
31
Crush et al in Cholewinkiet al (2009) 255.
32
Dupper (2007) Stell LJ 220.
33
Vonk (2002) EJSS 317.
34
Millard (2008) AHRLJ 40.
35
Dupper (2007) Stell LJ 222.
67 © University of Pretoria
of the Rights of All Migrant Workers and Members of their Families, 1990 (the
International Convention).36 It states that:
“[n]othing in the present Convention shall affect the right of each State Party
to establish the criteria governing admission of migrant workers and members
of their families”.37
The United Nations’ (UN) regulatory framework with regard to migration falls evenly
within the ILO’s sphere of aptitude. The UN adopted the International Convention in
1990, while the ILO was circumvented. This convention is described as the “epitome
of international human rights” and is regarded as one of the essential human rights
instruments for vulnerable groups all around the world.38 The International
Convention has a total of 35 ratifications.39 The fact that it took so long to obtain a
sufficient number of signatory states to ratify the International Convention is
indicative of the fact that there is a broad reluctance to adopt conventions that
protect the human rights of migrants in general and irregular migrants in particular.40
The International Convention has four stated purposes, namely:




to unify the body of law applicable to migrant workers;
to complement other instruments;
to improve the distinctive status of migrant workers and their families; and
to reduce clandestine trafficking.41
It suggests that whenever state parties consider regularizing the status of any
irregular migrant in accordance with appropriate national legislation and bilateral or
multilateral agreements, the following circumstances must be considered: the proper
recording of the circumstances under which they enter a country, the extent of their
stay in the country of employment and other relevant factors, especially those
relating to family conditions.42
36
GA Resolution 45/158, Annex, 45 UN GAOR Supp. (No 49A) at 262, UN Doc.A/45/49 (1990). The
Convention entered into force on 1 July 2003.
37
A 79.
38
Dupper (2007) Stell LJ 226.
39
Dupper “Migrant workers and the right to social security: An international perspective” in Becker and
Olivier(2008) 35 – 36 confirms that 20 ratifications were needed for the Convention to come into
force.
40
Taran “Human rights of migrants: Challenges of the new decade” (2000) International Migration 18
as referred to by Dupper (2007) Stell LJ 227 and 240; Dekker (2010) SA Merc LJ at 392 points out
that there is a “fear that irregular migration may increase” if human rights protection is extended to
irregular migrants.
41
Preamble of the Convention.
42
A 69(2).
68 © University of Pretoria
In Discovery Health (BLLR),43 which was discussed in Chapter 3, the court stated
that despite the fact that it has not been ratified by many countries,44 the
International Convention “remains a significant statement of international norms in
relation to the rights of migrant workers”. The International Convention includes the
following categories of migrant workers, namely: frontier workers, seasonal workers,
seafarers, workers on offshore installations, itinerant workers, project-tied workers
and self-employed workers.45
The preamble of the Constitution of the ILO46 accentuated the “protection of the
interests of workers when employed in countries other than their own”.47The ILO has
conventions dedicated to migrant workers’ social security in particular and social
protections in general.48Two of the most important conventions dealing with aspects
of social security are, namely, the Equality of Treatment (Social Security)
Convention, 1962 (No 118), which states that migrants should be given the same
coverage and entitlement to benefits as citizens of the country they are residing in,
and secondly, the Maintenance of Social Security Rights Convention 1982 (No 157),
which states that migrants should be allowed to receive the benefits they are entitled
to, even when they travel outside of the borders of the country that is obliged to
make the benefits available. Both of these conventions focus on the social
assistance and social insurance strands of social protection.
As
mentioned
in
previous
chapters,
the
ILO
has
adopted
conventions,
recommendations and standards regulating the international world of labour.49 The
ILO’s Migration for Employment Convention, 1949 (Revised) (No 97),50 together with
the Migration for Employment Recommendation (Revised), 1949 (No 86), contain
43
Discovery Health Limited v CCMA & others [2008] 7 BLLR 633 (LC) par 46.
South Africa has not ratified the International Conventions. However, the court may consider its
terms. See Discovery Health Limited v CCMA &others [2008] 7 BLLR 633 (LC) par 46.
45
Part V of the Convention (aa 57 – 63).
46
As revised. Constitution of the International Labour Organization (April 1919).
47
Preamble
of
the
Constitution
of
the
ILO
available
at
http://www.ilo.org/public/english/bureau/leg/download/ constitution.pdf visited on 2012/12/20.
Dupper (2007) Stell LR 225 also mentions that “[a]t the First Session of the International Labour
Conference in 1919, a recommendation [The Reciprocity of Treatment Recommendation, 1919 (N0
2)] was adopted which already reflected the two main aims of the ILO in this area, namely equality
of treatment between nationals and migrant workers, and coordination of migration policies between
States.”
48
As discussed in Chapter 2.2.3.
49
As discussed in Chapter 2.2.3.
50
Convention 97 of 1949.
44
69 © University of Pretoria
standards regarding the organization of migration and equality of treatment.
Convention 97 of 1949 is more elaborate than the earlier conventions concerning
migration, and reveals a flexible reaction to the needs of migrant workers.51
The ILO recognizes that irregular migrants, and to some extent regular migrant
workers, are subject to abuse by employers. Convention 143 of 197552
acknowledges that migrant workers are entitled to compensation for work they have
already done. This could include any contribution they made to, for example, a
pension fund, medical aid or unemployment insurance. This convention further
states in article 3 that every member must adopt the necessary methods to restrain
the secret movement and illegal employment of migrants. These measures are
implemented to abolish the abuse of migrant workers. This article is clearly
structured to exclude illegal movement, as well as illegal employment and working
conditions, thus limiting the scope of this convention.
Convention 143 of 1975 applies the concept of equality through various articles.
Dupper states that this convention is an improvement over Convention 97 of 1949.53
Convention 143 of 1975 acknowledges irregular migrant workers and indicates that
in some instances the migrant worker will not be regarded as irregular despite the
lack of necessary documentation. Article 8 states that, on the condition that the
migrant has legally resided in a country for the purpose of employment, the migrant
worker shall not be regarded as illegal or irregular merely because of the fact that he
or she has lost his or her employment. Furthermore, it will not imply the withdrawal of
the authorization of residence or a work permit, if it has been granted.
These two conventions draw no distinction between permanent migrant workers and
temporary migrant workers. The conventions do, however, exclude a number of
different categories of migrant workers.54 Despite the improvement of the different
51
See also the discussion with regard to the ILO standards dedicated to labour security in Chapter
2.2.3.4.
52
Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of
Opportunity and Treatment of Migrant Workers. Entry into force: 09 Dec 1978.Hereinafter
Convention 143 of 1975.
53
Dupper (2007) Stell LJ 230.
54
Convention 97 of 1949 referrers to frontier workers in par 112. A 2 of the UN International
Convention defines the term ‘frontier worker’ as “[a] migrant worker who retains his or her habitual
residence in a neighbouring State to which he or she normally returns every day or at least once a
70 © University of Pretoria
conventions with regard to the regulation of the protection afforded to migrant
workers, a number of problems still remain. These relate to a situation where the
citizens of the country are treated badly, and where migrant workers will
consequently be affected negatively if they must be treated in the same manner as
the migrant-receiving country’s citizens. Furthermore, migrants mostly perform jobs
not done by the nationals themselves,55 and therefore drawing a comparison is
almost impossible.
Neither of these conventions makes a distinction between regular and irregular
migrants in particular. Article 6 of the Convention 97 of 1949 makes provision for the
equal treatment of migrant workers and other workers within member states in,
among other things, the areas of employment rights, social security rights and
accommodation rights.56 However, it specifically provides that the protection applies
to nationals and “immigrants lawfully within its territory”.57 Lastly, none of the ILO
instruments explicitly protects migrant workers in an irregular situation. This
vulnerable group of individuals has never been included in the protection provided by
these conventions.58
The ILO encourages the adoption of bilateral agreements to manage the flow of
migration between countries.59 These agreements are formed to regulate the
week.” A 11.2(b) in both Conventions exclude members of the liberal professions and artistes, who
are given permission to enter for an (undefined) short duration; A 11.2(d) of Convention 143 of 1975
refers to persons coming specifically for the purposes of training and education; and lastly A 11.2(e)
of Convention 143 of 1975 excludes employees of organizations or undertakings operating within
the territory of a country who have been admitted temporarily to that country at the request of their
employer to undertake specific duties or assignments for a limited and defined period of time and
who are required to leave that country on the completion of their duties or assignments.
55
Referred to as‘migrantjobs’. See Dupper (2007) Stell LJ 220.
56
See Olivier (2012) Part 2 SADC Law J 146 – 147. Article 6(1)(b) of ILO Convention 97 of 1949 on
the Migration for Employment (Revised Convention) provides that ratifying countries undertake to
apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully
within its territory, treatment no less favourable than that which it applies to its own nationals in
respect of, among other things, but subject to certain limitations, social security.
57
A 10 of Convention No 143 of 1975 mirrors article 6 in relation to the position of nationals and
regular migrants. It provides that states that have ratified the Convention undertake to guarantee
“[e]qual opportunity and treatment in respect of employment and occupation, of social security, of
trade union and cultural rights and of individual and collective freedoms for persons who as migrant
workers or as members of their familiesare lawfully within its territory”. 58
Dupper (2007) Stell LJ 230. However, the UN International Convention extends to irregular migrant
workers as well.
59
Migration for Employment Recommendation (Revised), 1949 (No 86), Migration for Employment
Convention (Revised), 1949 (No 97) and Migrant Workers (Supplementary Provisions) Convention,
1975 (No 143).
71 © University of Pretoria
obligations of the signatory country in order to lessen the disadvantages that
migrants face.60 There are five important principles to consider when establishing
international agreements. These are: (a) equality of treatment; (b) determination of
applicable legislation; (c) maintenance of acquired rights; (d) maintenance of rights in
course of acquisition; and (e) payment of benefits abroad.61 International agreements
use five methods to improve the disadvantaged position of migrants.
These were stated by Roberts62 as follows:
“[e]quality of treatment, or the prohibition of discrimination on grounds of
nationality in respect of rights and obligations under the legislation of each of
the contracting parties; provisions to ensure that migrant workers are not
insured in either country’s scheme and thus without any social security
protection and to prevent them being insured in both; aggregation of periods
of insurance spent in each of the countries when calculating entitlement to
benefits; proratarization - that each of the countries pays a proportion of the
pension determined by the period of insurance spent in each; and export of
benefits.”63
These agreements do have their advantages and provide some protection to
migrants in the field of social protection. However, this protection is still not sufficient,
and still has a number of shortcomings. One of the factors influencing the sufficient
implementation of agreements is the member countries’ territorial sovereignty. This
is defined as the country’s right to determine who should and who should not have
access to social protection, whether it is in the form of social security or any of the
other elements of social protection.
These agreements do not succeed in putting the principles established at the
multilateral level and determined by international conventions into practice. One of
the reasons for this is that migrants flow from many more countries than they did a
60
ILO Introduction to Social Security (1989) ILO Geneva 152.
See ILO Standards for the XXIst Social Security (2002) ILO Geneva 41 – 44. Also see the Equality
of Treatment (Accident Compensation) Convention, 1925 (No 19); the Migration for Employment
Convention, 1966 (No 66); and the Maintenance of Social Security Rights Convention, 1982 (No
157).
62
These reports were tabled by Roberts during the International Research Conference on Social
Security held at Helsinki on 25 – 27 September 2000 under the theme “Social Security in the Global
Village”. Available at https://dspace.lboro.ac.uk/dspace-jspui/bitstream/2134/2677/2/2roberts.pdf
visited on 2013/06/11.
63
Roberts in Sigg&Behrendt (2002) 214. See also Becker and Olivier (2008) 32.
61
72 © University of Pretoria
few years ago.64 Furthermore, the protection provided by the bilateral agreements
between the affected countries is inconsistent.65 The benefits included in the
agreements do not make provisions for all occurrences. Lastly, these agreements
have certain limitations, as they usually do not extend to migrants of a third country.
Those migrants whose country is not a party to an agreement are thus dependent
upon the benefits offered by the host country. These benefits would differ from
country to country.66
4.4.2 National Instruments
4.4.2.1 Introduction
When regulating migration in any country, the national laws applicable should ideally
always be in line with the international standards, as the migrants should be
protected as international citizens of the world. According to Crush et al, “South
Africa has a long history of abusing migrants’ rights”.67 The enduring abuse of
migrants’ rights even after the apartheid era has been apparent in three central
areas. The first is at the community level, where there is growing prejudice against
non-citizens in South Africa.68 Secondly, the workplace is another area where
migrants’ rights are abused, since migrant workers are a vulnerable group and would
not risk deportation to report bad working conditions.
Lastly, on the streets of some of the biggest cities in South Africa, the police initiated
attacks on irregular migrants, which resulted in waves of xenophobia in migrant
communities.69 In 2001,former president Thabo Mbeki stated that South Africa’s
intimate relationship with the rest of the African continent “is illustrated by the
significant number of fellow Africans who have sought to settle in South Africa” and
that “it is fundamentally wrong and unacceptable that we should treat people who
come to us as friends as though they are our enemies.”70
64
Becker and Olivier (2008) 32.
Ibid.
66
Some bilateral and multilateral agreements between South Africa and its neighbouring countries
within the SADC region will be discussed in the following chapter.
67
Crush et al in Cholewinskiet al (2009) 247.
68
An example of the growing intolerance by citizens is the incidence of verbal or physical attacks on
non-citizens. See also Crush et al in Cholewinski et al (2009) 257.
69
Crush et al in Cholewinskiet al (2009) 257.
70
President Thabo Mbeki in ANC Today, May 2001. Available on
65
73 © University of Pretoria
The Constitution affords human rights protection to everyone in the country.71 South
Africa also guarantees the right of freedom of movement.72 This right is not limited to
citizens only.73 Many outsiders where stunned by the fact that South Africa, with one
of the most progressive constitutions74 in the world, could at the same time treat
migrants with disregard for their basic human rights.75 South Africa has developed
legislative instruments to give effect to the international instruments ratified by the
country in order to regulate the flow of migration and the rights afforded to migrants.
The South African government revised its migration legislation and introduced
mechanisms through which labour markets could be accessed.76 This contributed to
the rising number of migrants flowing into the country from the rest of Africa.77 Some
of the most important acts and instruments concerning migration will be discussed in
the order that they were promulgated. The impact that these instruments have had
on the regulation of the ongoing flow of migration into South Africa will form part of
this discussion.
4.4.2.2 The Aliens Control Act and Refugees Act
Before 2002, migration in South Africa was governed by the Aliens Control Act78
(ACA). The ACA refers to migrants as ‘aliens’. The ACA defines an ‘alien’ as a
person who is not a South African citizen.79 The ACA regulated entry into the country
in one of two ways. Firstly, it was regulated by way of bilateral agreements.80 These
agreements between the country and its neighbouring states indicated the specific
terms under which migrants could enter and work in the country, specifically in the
mining industry.81 Secondly, regulation of migration was done through the provisions
of the ACA itself. The ACA prescribed and developed mechanisms to control
http://www.queensu.ca/samp/sampresources/samppublications/policyseries/Acrobat22.pdf visited
on 2013/08/02. See also Crush et al in Cholewinski et al (2009) 263.
71
Chapter 2 of the Constitution.
72
S 21.
73
The relevant section refers to “everyone”.
74
Including the Bill of Rights contained in Chapter 2 of the Constitution.
75
As indicated previously. See also Crush et al in Cholewinski et al (2009) 258.
76
The Immigration Act 13 of 2002 was developed.
77
Crush et al in Cholewinski et al (2009) 250.
78
96 of 1991.
79
S 1 of the ACA as the definition was substituted by s 5 of the Abolition of Restrictions on Free
Political Activity Act 206 of 1993.
80
Crush et al in Cholewinski et al (2009) 261.
81
These agreements will be discussed in Chapter 5, where there will be a comparison drawn between
South Africa and some of its neighbouring countries.
74 © University of Pretoria
migration.82 The ACA continued to regulate the practices that were developed during
the era of the former National Party government, and most of the provisions of the
ACA were found to be unconstitutional and inconsistent with the Constitution.83 The
effect of this inconsistency was the development of new legislation.84
The Refugees Act85 acknowledged and integrated international standards into its
regulation of refugees situated in South Africa.86 According to the provisions of the
Refugees Act, migrants have rights and obligations while they are inside the borders
of the country. This group of individuals is entitled to full legal protection, including
the human rights entrenched in the Bill of Rights. Among other things, refugees are
allowed to receive formal written recognition of their status as a refugee in South
Africa.87 Furthermore, refugees have the right to receive basic health services and
education similar to what residents receive.88
The Refugees Act currently makes a distinction between refugees and asylumseekers.89 The Refugees Act permits refugees to seek work in South Africa,90 but do
not have a similar provision with regard to asylum-seekers. There is only one
fundamental obligation imposed on the refugee in the country, which is that the
refugee must abide by the laws of the Republic of South Africa.91 The legislation
dedicated to the regulation of refugees is, in most instances, comprehensive in its
82
The preamble to the ACA acknowledged that the act was developed “to provide for the control of
the admission of persons to, their residence in, and their departure from, the Republic; and for
matters connected therewith.”
83
Crush et al in Cholewinski et al (2009) 261.
84
The Immigration Act 13 of 2002, which was not substantively different from the objectives of the
ACA. As discussed under subsection 4.4.2.4 above. See also Crush et al in Cholewinski et al
(2009) 261.
85
130 of 1998.
86
The preamble states that “[w]here as the Republic of South Africa has acceded to the 1951
Convention Relating to Status of Refugees, the 1967 Protocol Relating to the Status of Refugees
and the I969 Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa as well as other human rights instruments, and has in so doing, assumed certain
obligations to receive and treat in its territory refugees in accordance with the standards and
principles established in international law.”
87
Indicated by s 27 of the Refugees Act, as well as the right to receive an identity document in
accordance with s 30.
88
S 27(g) states that refugees are “[e]ntitled to the same basic health services and basic primary
education which the inhabitants of the Republic receive from time to time.”
89
Refugees are defined in s 1 as individuals who have been granted asylum in accordance with the
provisions of the Refugees Act, whereas asylum-seekers are persons who are seeking recognition
as refugees in terms of the Refugees Act.
90
S 27(f) determines that refugees are entitled to seek employment as one of the rights allocated to
refugees.
91
S 34 of the Refugees Act.
75 © University of Pretoria
objective to protect the rights of refugees. Asylum-seekers, on the other hand, do not
receive the same treatment as refugees or other residents, as they are still awaiting
the confirmation of their status.
4.4.2.3 The White Paper on International Migration
The White Paper on International Migration (the White Paper)92 was developed
aiming to deal with migration in a global context, as well as facilitating South Africa’s
integration into SADC. The White Paper divides migrants into three different
categories, namely those with the willingness to stay in the country permanently,
individuals who do not want to stay in the country on a permanent basis and
refugees.93
The White Paper acknowledges that there are no constitutional grounds for the
exclusion of the application of the Bill of Rights in the Constitution based on the
status of an individual, including irregular migrant status.94 However, the White Paper
accepts the following as one key guiding principle: “the migration system should
enable Government to retain control on who may enter the country and the
conditions and length of his or her stay.”95 This could be seen in the same light as
the
international
organization’s
acknowledgement
of
different
states’
96
sovereignty, which indicates that each country, including South Africa, has the right
to exercise its sovereignty and decide who may enter the country and the period for
which they may remain.
Furthermore, the White Paper investigated the community’s needs and recognized,
inter alia, the following priorities:

“ensuring that illegal aliens do not take available job opportunities away from
community members and do not compete with them for scarce public
services;
92
Available on http://www.info.gov.za/whitepapers/1999/migrate.htm visited on 2013/07/23.
In a 14 of the White Paper different migrants are defined which would fall within the three
categories above. These are for example “[m]igration means to travel so as to temporarily change
one’s place of residence; and immigration means to enter another country in order to make one’s
permanent life and home there.”See also Sebola (2011) JPA 1057 and Majodina (2001) 141.
94
In a 2.2 the limitation clause incorporated in the Constitution is recognized, and it is further stated
that, despite the limitations acknowledged by this clause, “[t]he limitation clause may not be invoked
to prevent a class of people, however identified, from enjoying the total use and benefits of a given
constitutional right.”
95
A 4.1 of the White Paper 10 – 11.
96
The International Convention in a 42(3) indicates that migrants may enjoy political rights if the
migrant-receiving government grants them these rights through the state’s sovereignty.
93
76 © University of Pretoria



ensuring that illegal aliens do not become public charges or become involved
in criminal activities;
ensuring that education is provided at community level to avoid any form of
xenophobia by making communities understand the tragedy of illegal
immigration while cooperating with law enforcement authorities;
ensuring the resettlement of refugees and ensuring that they are not confused
with illegal immigrants.”97
The priorities of the White Paper focus on the protection of the community against
irregular migrants, as it is indicated that they should not be able to take available
jobs. It would appear that the priorities are centred against irregular migrants
entering the country, since there are measures taken to ensure that the community is
aware of the flow of migration from the point of view that it is a “tragedy”. Despite this
point of view, the White Paper gives an indication of the country’s willingness to be
part of the refugee matter worldwide and to administer its public administration
internationally.98 The White Paper never came into force in South Africa. The White
Paper establishes fairness with regard to migrants entering the country. The
implementation of the White Paper could have been of significant value in bringing
the South African immigration law in line with the international norms regarding
migration.
4.4.2.4 The Immigration Act
The South African Immigration Act99 was developed due to the lack of
constitutionally
aligned
legislative
instruments
regarding
migration.100
The
Immigration Act differs from the ACA in two ways: firstly, by identifying the serious
problem of xenophobia, and secondly, by referring to the need for skilled workers to
migrate to South Africa.101 However, the Immigration Act focuses on the control of
migration in the enforcement of migration law.102 Section 2 of the Immigration Act
establishes a list of main objectives. These objectives intend to, inter alia, facilitate
the legal movement of people into and out of South Africa; prevent irregular
97
A 5 of the White Paper 14.
Sebola (2011) JPA 1057.
99
13 of 2002. Hereinafter the Immigration Act.
100
As seen under the provisions of the precursor, the Aliens Control Act 96 of 1991, discussed in the
next part of this chapter.
101
The preamble of the Immigration Act states that “(m) xenophobia is prevented and countered both
within Government and civil society.”
102
Crush et al in Cholewinskiet al (2009) 262.
98
77 © University of Pretoria
migration into South Africa; and decrease the administration associated with
permits.103
Furthermore, the Immigration Act has certain objectives with the specific intentions of
regulating labour migration and improving economic growth. It aims to reduce the
unlawful migration of unskilled workers in particular, and at the same time encourage
people with skills needed in the country to migrate to South Africa.104 This could be
seen as an indication that there is a willingness to develop labour security and to
integrate the laws associated with labour security with those legislative instruments
regarding migration. The Immigration Act makes it a condition for different
government and private institutions and sectors to become involved with the
execution and enforcement of migration law.105
The Immigration Act establishes different ways in which persons can migrate legally
to South Africa.106 Unlike the international instruments, South Africa draws a
distinction between temporary and permanent residents. Section 9(4)(b) of the
Immigration Act determines that non-South African citizens may enter and remain in
the country only if they have a permanent residence permit or one of 14 different
kinds of temporary residence permits.107 Persons with permanent residence
permits108 may stay in the country indefinitely and temporary residents only
temporarily.
103
S 2 of the Immigration Act. See also Crush et al in Cholewinskiet al (2009) 262.
S 2(j) states that the Act aims to regulated “[t]he influx of foreigners and residents in the Republic
to – (i) promote economic growth, inter alia. by –(aa) ensuring that businesses in the Republic may
employ foreigners who needed; (bb) facilitating foreign investments, tourism and industries in the
Republic which are reliant on international exchanges of people and personnel; (cc) enabling
exceptionally skilled or qualified people to sojourn in the Republic; (dd) increasing skilled human
resources in the Republic; (ee)facilitating the movement of students and academic staff within the
Southern African Development Community for study, teaching and research; and (ff) promoting
tourism; (ii) where applicable. Encouraging the training of citizens and residents by employers to
reduce employers’ dependence on foreigners’ labour and promote the transfer of skills from
foreigners to citizens and residents”.
105
S 44 establishes the duties and obligations afforded to the different organs of the state. S 45
regulates the duties and obligations of other institutions.
106
Ss 10 – 24 regulate permits afforded to temporary residents, while ss 25 – 31 are used to regulate
permanent residence.
107
Ss 10 – 24 of Act 13 of 2002. The different temporary residence permits are: visitor’s permit;
diplomatic permit; study permit; treaty permit; business permit; crew permit; medical treatment
permit; relative’s permit; work permit; retired person permit; corporate permit; exchange permit;
asylum; and cross-border and transit passes.
108
S 25 of Act 13 of 2002 provides that “(1) [n]o person shall employ – (a) an illegal foreigner; (b) a
foreigner whose status does not authorise him or her to be employed by such person; (c) a
104
78 © University of Pretoria
Permanent residence is allocated to migrants under certain conditions.109 The holder
of a permanent residence permit has the same rights, obligations, duties and
privileges that the citizens of South Africa have, excluding, inter alia, those rights and
duties specifically allocated to citizens only.110 A permanent residence permit could
be issued to a holder of a work permit for five years who has received an offer of
permanent employment.111 The department may also issue permanent residence
permits to a person with a sound and good character and with an offer of permanent
residence.112
There are a number of permits allocated to temporary residents.113 These permits
are considered to be in force after the allocation of the permit and will only be issued
if the holder is not a prohibited or undesirable person.114 Cross-border permits are
issued that allow multiple entries for “a foreigner who is a citizen or a resident of a
prescribed foreign country with which the Republic shares a border”,115 these permits
do not allow the holders to trade. In South Africa, only citizens are allowed to choose
their own trade, occupation or profession.116
Section 32 of the Immigration Act instructs that an irregular non-citizen is required to
leave, unless allowed by the Department to remain in the Republic awaiting an
application for a status. It is specifically stated that “any illegal foreigner shall be
deported”. South African migration law efficiently utilizes a means of survival test to
foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s
status. (2) An employer shall make a good faith effort to ascertain that no illegal foreigner is
employed by him or her or to ascertain the status or citizenship of those whom he or she employs.”
109
S 25(3) states that a permanent residence permit may be issued under the condition that the
holder does not become a prohibited person and is subject to s 28 of the Immigration Act.
110
S 25(1) of the Immigration Act.
111
S 26 of the Immigration Act.
112
S 27 indicates the other grounds on which residence could be afforded to migrants.
113
As regulated by ss 10 – 24 the permits associated with temporary residence are: Visitor’s permit;
Diplomatic permit; Study permit; Treaty permit; Business permit; Crew permit; Medical treatment
permit; Relative’s permit; Work permits; Retired person permit; Corporate permit; Exchange permit;
Asylum; and Cross-border and transit passes.
114
S 10(4) of the Immigration Act.
115
S 24 of the Immigration Act.
116
S 22 of the Constitution states under the heading of “[f]reedom of trade, occupation and
profession”, that “every citizen has the right to choose their trade, occupation or profession freely.
The practice of a trade, occupation or profession may be regulated by law”.
79 © University of Pretoria
assure that only those who can support themselves are allowed to come into and
stay in South Africa.117
As pointed out by Olivier,118 one of the crucial provisions of the Immigration Act is
that a temporary residence permit is issued on condition that the non-citizen does
not become a “prohibited or undesirable person”. One of the conditions is that a
person should not become a “public charge”. This could become a severe restriction
to non-citizens who lose their temporary residency and may even imply that those
who apply for social assistance could lose their right to remain in the country in terms
of the Immigration Act. There are merits in Olivier’s argument that the migration
policies (and legislative instruments) and social protection measures should be
bought in line with each other.
4.5
CONCLUSION
Migration is a rising trend that forms part of everyday life. Migration is the constant
flow of persons between countries, as well as people moving within their own
country. There are a number of reasons responsible for migration. Some of these are
for food, shelter and better work conditions. The factors that almost always play a
significant role are the migrant’s search for better living standards and providing for
his or her family.
The different forms of migration are important considerations when dealing with the
protection or benefits that migrants are entitled to. Labour migration is a significant
concept when the social protection afforded to migrant workers is examined. This
form of migration deals with skilled as well as unskilled workers, and therefore also
includes migrant workers employed in the informal sector. Migrant workers are seen
as a vulnerable group of individuals, and thus need protection from exploitation by
the employer and eviction by the authorities. Migrants are treated differently
depending on their migration status. Migrants are not eligible for the same social
protection that is available to the citizens of the host country. Furthermore, regular
and irregular migrants are not entitled to the same benefits either. There are a
117
S 30(1)(a) read together with s 10(4). See also Olivier (2012) Part 2 SADC LJ 130 and Olivier
(2011) Part 1 SADC Law J 138.
118
See Olivier (2011) Part 1 SADC Law J137 and ss 29 – 30 of Act 13 of 2002.
80 © University of Pretoria
number of limitations to the social protection that irregular migrant workers will
receive.
When regulating migration, not only legislative instruments are of significance. The
ILO encourages the adoption of bilateral and multilateral agreements between
countries affected by migration. These agreements are established according to
different international standards, and aim to equalize the availability of social
protection to all individuals. Despite the vital role that bilateral agreements between
migrant-receiving and migrant-sending countries play in defining and developing the
rights of migrant workers to social protection, these agreements still have their
shortcomings.
International standards recognize the territorial sovereignty of each country over its
physical domain. Regardless of the authority of every state to manage the flow of
migration in and out of the country, international legislative instruments must be
considered. These instruments aim to protect migrant workers who leave their own
countries in search of employment to improve their living standards. The ILO and UN
play significant roles in the development of the concept of migration and the removal
of the obstacles that these individuals face on a day-to-day basis.
The UN adopted the International Convention in 1990. It took a number of years for
the convention to come into force. The convention places a significant responsibility
on countries affected by the flow of migration. It is the most comprehensive
instrument where the position of migrant workers is concerned, but inevitably
overlaps with the ILO instruments.119 Despite the good intentions of international
organizations to protect all workers, regardless of their migration status, there are
still some groups that are not included under the umbrella of social protection.
It is clear through the course of migration in and out of South Africa that the
legislative measures do not provide proficient protection for migrant workers. When
the employment contract, if any, of a migrant worker comes to an end, the worker is
119
Dupper (2007) Stell LJ 227.
81 © University of Pretoria
required to leave the country as soon as possible.120 The Immigration Act aims to
strike a balance between the desires of the South African economy for exceedingly
skilled workers and the apprehension that the working conditions of migrant workers
may weaken existing labour markets and practices.121 It attempts to accomplish this
by limiting the flow of unskilled migrant workers into South Africa.
Most of the SADC migrants who are semi-skilled and enter the country for
employment reasons cannot qualify for a work permit under the different categories
in the Immigration Act. The South African government, through legislation and
developing policies, is able to give preference to migration laws over labour and
social protection laws.122
120
This period has been recorded as being between 24 and 48 hours. See also Olivier (2012) Part 2
SADC Law J 131.
121
Olivier (2011) Part 1 SADC Law J 137 – 138.
122
Olivier (2012) Part 2 SADC Law J 131.
82 © University of Pretoria
CHAPTER 5
REGIONAL STANDARDS AND A COMPARATIVE PERSPECTIVE
5.1
INTRODUCTION
83
5.2
THE STRUCTURE OF SADC
85
5.3
THE SADC PERSPECTIVE ON SOCIAL PROTECTION
AND MIGRATION
86
COUNTRIES IN THE SADC REGION
91
5.4.1 Introduction
91
5.4.2 Namibia
92
5.4.3 Botswana
95
5.4.4 Mozambique
98
5.4.5 Lesotho
103
5.4.6 Swaziland
105
5.4.7 Mauritius
107
5.5
CONCLUSION
109
5.1
INTRODUCTION
5.4
South Africa is the largest host country of migrant workers in the Southern African
Development Community (SADC).1 One of the most important reasons for labour
migration from other SADC countries to South Africa is the availability of work in the
South African gold mines.2 There are both migrant-sending and migrant-receiving
countries in SADC.3 Within SADC, the majority of migrants target countries with
stronger economies.4 These include South Africa Namibia and Botswana.5 Most
foreign migrants entering South Africa are from SADC countries, such as
Mozambique and Lesotho.6
1
Olivier (2011) Part 1 SADC Law J 127.
Crush et al in Cholewinskiet al (2009) 253.
3
Mpedi and Smit (2011) 1.
4
Dekker (2010) SA Merc LJ 390.
5
Ibid.
6
Mokgoro (2010) Stell LJ 221.
2
83 © University of Pretoria
The International Organization for Migration’s Standing Committee on Programmes
and Finances defines migration as involving “a diverse group of people, including
regular and irregular migrants, victims of trafficking, asylum seekers, refugees,
displaced persons, returnees, migrant workers and internal migrants”.7
The majority of migrants to SADC countries come from other SADC countries.8It is
widely accepted that SADC is a deprived and poor region.9 Poverty, unemployment,
low levels of education, HIV/Aids and irregular migration pose significant socioeconomic challenges to the governments of these developing countries. These
significant socio-economic problems are all contributing factors to the increase in the
competition for available resources in the SADC region. Each country in the SADC
region faces its own problems regarding economic growth, social poverty and the
uniqueness of the citizens of that specific country. The different SADC countries
have developed their own legislative instruments to deal with migration, social
protection and labour, which are unique to their own systems of law and their
community’s needs.
International, continental and regional norms relating to social protection and migrant
workers have been adopted. In addition to this, a number of the constitutions of
African countries contain the right to some form of social protection as a human
right.10 During the assessment of the regional standards, a comparison will be drawn
between South Africa and some of its neighbouring countries in the quest to
establish whether South Africa can learn something from the developments that
occurred in the countries or the mistakes made by the different countries. In this
chapter, reference will be made to specific agreements11 concluded between South
Africa and some of the SADC countries regarding migration and the awarding of
7
Migration and Health in SADC: a review of the literature 12 available on
http://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CC4QFjAA&
url=http%3A%2F%2Ffreedommedia.co.za%2Fiom%2F%3Fwpdmact%3Dprocess%26did%3DNTUu
aG90bGluaw%3D%3D&ei=b9AyUuLXMsKohAevtoHIDQ&usg=AFQjCNG4iEEkGgNDv9qkPGy74Tl
7UPb19g visited on 2013/08/13. Hereinafter Migration and Health in SADC.
8
Olivier (2011) Part 1 SADC Law J 123 mentions that “[s]ubject to some exceptions, it appears that
most of the migration from SADC is actually to other SADC countries. Thus intra-SADC movement
is the prevailing characteristic of migration from SADC countries.”
9
Olivier and Mpedi (2004) JJS 15.
10
Fombat (2013) AJICL 21/1 1 at 12.
11
Bilateral, multilateral and labour agreements.
84 © University of Pretoria
social protection benefits to the individuals flowing from one country to another for
work purposes.
The overarching theme of this chapter concerns the question of the extent to which
migrant workers can rely on social protection12 in the SADC region, and in some
specific SADC countries.
5.2
THE STRUCTURE OF SADC
The Southern African Development Co-ordination Conference (SADCC) was
established in 1980 when nine majority-ruled states formed a loose alliance.13 On 17
August 1992, in Windhoek, Namibia, the SADC Treaty was signed, transforming
SADCC into SADC.14 The motto contained in the SADC coat of arms reads
“Towards a Common Future”. Article 3 of the SADC Treaty states that member
states shall establish a priority list of relevant conventions (including the ILO’s eight
core conventions)15 and take appropriate action to ratify and implement these
instruments. This is an indication of SADC’s commitment to providing social
protection to its inhabitants.
Article 5 of the SADC Founding Treaty establishes that SADC’s objectives are the
achievement of development and economic growth, alleviation of poverty,
enhancement of the quality of life of the people of Southern Africa, and support for
the socially disadvantaged through regional integration.16 The treaty entrusts
member states to adopt fundamental values, such as equality of members, solidarity,
peace and safety, human rights, democracy and the rule of law, equity, balance and
12
See the discussion about the terms ‘social protection’ and ‘social security’ in Chapter 2.
Tanner (2012) 383.
14
On 14 August 2001, Heads of State and government signed an agreement amending the SADC
Treaty. 15
The ILO has adopted numerous conventions that provide for social security and labour protection in
general that also indirectly relate to migrants. The ILO has identified eight conventions as the
fundamental conventions of the ILO. These are, namely, the Forced Labour Convention, 1930 (No
29);the Freedom of Association and the Right to Organise Convention, 1948 (No 87); the Right to
Organise and Collective Bargaining Convention, 1949 (No 90); the Equal Remuneration
Convention, 1951 (No 100); and the Discrimination (Employment and Occupation) Convention,
1951 (No 100); the Abolition of Forced Labour Convention, 1957 (No 105); the Minimum Age
Convention, 1973 (No 138); the Worst Forms of Child Labour Convention, 1999 (No 184).See Van
Niekerket al (2012) 22. 16
Nyenti and Mpedi (2012) PELJ 253.
13
85 © University of Pretoria
mutual benefit.17As mentioned by Nyenti and Mpedi, the objectives of the SADC
Treaty “envisage a regional collaborative approach, as they can be achieved only
through the development of regional social security mechanisms.”18
There are 15 countries in SADC.19 SADC has been declared a free-trading zone,
which will also increase migration to the different SADC countries.20 SADC is not a
supranational institution. Due to the fact that SADC is based on the principle of
sovereign equality of all member states, it could be classified as an organization of
an entirely inter-governmental character.21
5.3
THE SADC PERSPECTIVE ON SOCIAL PROTECTION AND MIGRATION
SADC has made some attempts to promote the extension of social protection and
migration among member countries. The countries in the SADC region are
increasingly becoming aware of the necessity to coordinate the social protection
systems in the region. This awareness has been augmented by the increasing flow
of migration and the need for integration in the region.22 The International
Organization for Migration mentions that, according to studies, the SADC states
have no common approach towards migration. The report further confirms that the
SADC countries’ legislative instruments simply focus on the effect of migration. In
SADC, most countries view migration as a problem and not as an opportunity.23
SADC identifies a number of categories of migrants. These are: migrant/mobile
workers,24
regular
migrants/undocumented
migrants/documented
migrants,26
migrants,25
asylum-seekers,27
17
refugees,28
irregular
internally
Olivier and Mpedi (2004) JJS 14 and Millard (2008) AHRLJ 52.
Nyenti and Mpedi (2012) PELJ 252.
19
The SADC member states are: Angola, Botswana, the Democratic Republic of the Congo (DRC),
Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, the Republic of Seychelles,
Swaziland, South Africa, United Republic of Tanzania, Zambia and Zimbabwe.
20
Dekker (2010) SA Merc LJ 390.
21
Tanner (2012) 388.
22
Olivier and Mpedi (2004) JJS 17.
23
Olivier (2011) Part 1 SADC Law J 127 – 128.
24
According to international migration law, a migrant worker is a person who is to be engaged, is
engaged or has been engaged in a remunerated activity in a state of which he or she is not a
national. See Migration and Health in SADC 12 and 13.
25
Refers to people who migrate through recognized, legal channels.
26
Someone who, owing to illegal entry or the expiry of his or her visa, lacks the legal status in a transit
or host country.
27
Persons seeking to be admitted into a country as refugees and awaiting decision on their
18
86 © University of Pretoria
displaced migrants,29 economic migrants,30 trafficked persons,31 seasonal migrant
workers,32 cross-border traders,33 labour migrants34 and internal migrants.35 These
different categories of migrants are regulated and identified by a number of
instruments developed by SADC. These will not be discussed, as only the migrants
recognized by the South African legislation form part of this research.36
SADC’s vision is one of common future, with in the SADC community. This vision will
guarantee economic security social justice, refuge for people, improvement of quality
of live.37 Furthermore, SADC aims to abolish the obstacles associated with the free
movement of labour, capital and people within the SADC region, while harmonising
political and socio-economical policies.38 SADC has made enormous progress in the
further development of social protection, while encouraging the member states to
undertake the provisions of the different instruments.
SADC shares the vision of the international organizations of establishing bilateral
and multilateral agreements between the SADC countries.39 In 1997, a number of
comprehensive objectives were visualized40 in a Draft Protocol on the Facilitation of
application for refugee status under relevant international and national instruments.
A person who, “owing to well-founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinions, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” in
a 1A(2) of the Convention relating to the Status of Refugees, 1951 as modified by the Protocol
relating to the Status of Refugees, 1967.
29
Persons or groups of persons who have been forced or obliged to flee or to leave their homes or
places of habitual residence, in particular as a result of or in order to avoid the effects of armed
conflict, situations of generalized violence, violations of human rights or natural or human-made
disasters, and who have not crossed an internationally recognized state border.
30
A person leaving his/her habitual place of residence to settle outside his/her country of origin in
order to improve his/her quality of life. It also applies to persons sett ling outside their country of
origin for the duration of an agricultural season.
31
A person who has been moved by deception, coercion, the threat or use of force and/or other forms
of exploitation.
32
A migrant worker whose work by its character is dependent on seasonal conditions and is
performed only during part of the year as stated in a 2(2)(b) of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families, 1990.
33
Cross-border migrants who move across an international border for the purpose of trade.
34
A person who moves from their home country to another, or within their own country of residence,
for the purpose of employment.
35
A person who moves from one area to another within the same country. This movement may be
temporary or permanent.
36
See Chapter 4.4.3.
37
Mpedi and Smit (2011) 36.
38
Ibid.
39
Chapter 4.4.4.1.
40
Available at http://www.unisa.ac.za/contents/faculties/law/docs/DRAFT.pdf visited on 2013/06/26.
28
87 © University of Pretoria
Movement of Persons in the SADC.41 These objectives were divided into immediate
objectives42 and ultimate objectives.43 These objectives are mainly focused on the
protection of the individual while inside the borders of the country and to eliminate
obstacles that may cross their paths. These objectives towards the facilitation of
movement by the development of agreements were examined in a Migration Policy
Brief in 2006.44 The SADC Treaty played an important role in the establishment of
the Draft Protocol.45
The Draft Protocol of 2006 has established a significant point of departure for the
facilitation of movement between the SADC countries. However, there are a number
of serious practical problems associated with the implementation of the Draft
Protocol. The Migration Policy Brief46 confirms that the Draft Protocol gives no
indication as to how it should be implemented in the member states’ legislative
structures. Furthermore, there are substantial resource and capacity implications
associated with the implementation of the provisions of the Draft Protocol. The
member state will have to develop logistical mechanisms and appropriate
technology. If this protocol could be ratified by member countries and implemented
into the countries’ structures it would pave the way to thorough agreements.47
Despite the efforts of international organizations and SADC to develop legislative
instruments and other measures to extend protection to migrant workers, there is still
much that needs to be done. Social protection afforded to migrant workers,
regardless of their status, is regulated in a restricted way by the different
41
The Draft Protocol.
In a 2, the immediate objective are stated as follows: “[t]he immediate objective of this Protocol in
relation to every citizen of a Member State is to facilitate – a) entry, for a lawful purpose and without
a visa, into the territory of another Member State for a period of three months at a time; b) residence
in the territory of another Member State; and c) establishment of oneself and working in the territory
of another Member State.”
43
A 3 of the Draft Protocol defines Ultimate Objective as “[t]he ultimate objective of this Protocol is to
develop policies aimed at the progressive elimination of obstacles to the movement of persons of
the Region generally into and within the territories of Member States.”
44
William and Carr (2006) Southern African Migration Project, The Draft Protocol on the Facilitation of
Movement of Persons in SADC: Implications for State Parties, Migration Policy Brief No. 18 6.
Available
at
http://dspace.cigilibrary.org/jspui/bitstream/123456789/30699/1/Migration%20Policy%20Brief%20N
o.%2018.pdf?1 visited on 2013/06/26.
45
The Treaty will be discussed in Chapter 5.
46
William and Carr (2006) Southern African Migration Project, The Draft Protocol on the Facilitation of
Movement of Persons in SADC: Implications for State Parties, Migration Policy Brief No. 18 8 – 10.
47
Millard (2008) AHRLJ 57.
42
88 © University of Pretoria
international structures. All of the available instruments and agreements still have
limitations and exclude some groups of migrant workers. The good intentions of
SADC, for example, with the development of the Draft Protocol are not enough to
facilitate free movement and extend protection to all. Most SADC countries simply do
not have strong enough economies or sufficient resources to accommodate
individuals entering these countries.
The SADC Treaty refers to most aspects associated with the purposes of SADC.
However, migration is not regulated in a comprehensive way. The non-discrimination
section of the SADC Treaty does not cover discrimination on the grounds of
citizenship.48 Furthermore, the SADC Treaty does not regulate freedom of movement
conclusively.49 SADC has adopted the Charter of Fundamental Social Rights in
SADC (the SADC Charter),50 which includes a number of objectives for promoting
social protection in the SADC region. Adapting the objectives of the SADC Treaty,
the SADC Charter, among other things, places the emphasis on the harmonization of
the social protection of those who have work and those who are striving to enter the
job market. Article 10 provides that:
“[e]very worker … shall have a right to adequate social protection … and
enjoy adequate social security benefits. Persons who have been unable to
enter or re-enter the labour market … shall be able to receive sufficient
resources and social assistance.”
It can be argued that article 10(1) (as quoted above) could have suggested that no
discrimination is allowed with regard to social protection for workers, including
migrant workers, irrespective of their migration status.51 Other goals include the
alignment of policies regarding freedom of association and collective bargaining,52
equal treatment for men and women,53 protection of children and young people,54
protection of elderly persons55 and protection of people with disabilities.56
48
A 6(2).
A 5(2)(d) requires SADC to “[d]evelop policies aimed at the progressive elimination of obstacles to
the free movement of capital and labour, goods and services, and of the people of the Region
generally, among Member States”.
50
In August 2003 it was signed by the SADC members’ Heads of State.
51
Kapindu (2011) AHRLJ 104.
52
A 4 of the SADC Charter.
53
A 6 of the SADC Charter.
54
A 7 of the SADC Charter.
55
A 8 of the SADC Charter.
56
A 9 of the SADC Charter.
49
89 © University of Pretoria
The SADC Charter emphasizes the need for social protection for workers and
vulnerable people, and it can be ratified by SADC countries. It contains provisions
relating to the social protection of both workers and those who are not employed.57
The SADC Charter makes provision for the right to sufficient social protection and
equal treatment for all genders.58It is worth noting that the SADC Charter does not
extend these protective measures to irregular migrants.
On the positive side, the SADC Social Security Code (the Code) encourages
member states to facilitate the exportability of benefits, which includes the payment
of benefits in the host country.59Although this Code is non-binding, it determines that
countries should apply the minimum standards to their social protection systems as
stated in the ILO Social Security (Minimum Standards) Convention.60 In article 4(1)
the Code provides that “everyone” has the right to social security. The Code also
requires of SADC member states that they develop and maintain social security
systems in line with the provisions of the Code and the SADC Charter.61 The Code
defines ‘social protection’ as:
“[p]ublic and private … measures designed to protect individuals against lifecycle crises that curtail their capacity to meet their needs. The object is to
enhance human welfare.”62
The Code specifically promotes the social protection of migrants, foreign workers
and refugees. It encourages member states to protect regular migrants in so far as
they should be entitled to participate in the social security schemes of host countries
and they ought to enjoy equal treatment regarding social protection compared to
57
Kapindu (2011) AHRLJ 104.
A 10 and a 6 direct member states to create an enabling environment consistent with the ILO
conventions on discrimination and equality and other relevant instruments so that: gender equity,
equal treatment and opportunities for men and women are ensured; equal opportunities for both
men and women shall apply, in particular with regard to access to employment, remuneration,
working conditions, social protection, education, vocational training and career development; and
reasonable measures are developed to enable men and women to reconcile their occupational and
family obligations. See also Mpedi (2009) TSAR 700.
59
A 17(2)(c) and (d) of the SADC Social Security Code.
60
Social Security (Minimum Standards) Convention, 1952 (no 102).
61
A 10 of the Community Social Charter provides that “[m]ember states shall create an enabling
environment so that every worker in the Region shall have a right to adequate social protection and
shall, regardless of status and the type of employment, enjoy adequate social security benefits.
Persons who have been unable to either enter or re-enter the labour market and have no means of
subsistence shall be entitled to receive sufficient resources and social assistance”.
62
A 1 of the Code.
58
90 © University of Pretoria
nationals of the host country.63 However, the instrument is narrowly construed in so
far as it provides that social protection should be extended to “all lawfully employed
immigrants” by means of bi- or multilateral arrangements between member states
and national legislation.64 In article 6(2) of the Code non-discrimination are dealt
with. The list is, however, a closed list and does not include prohibition of
discrimination with regard to a person’s nationality or citizenship.65
Added to this, article 17(3) of the Code requires that irregular migrants should be
provided with “basic minimum protection” and should enjoy protection under the laws
of the receiving country.66 Where the SADC Charter contains general overarching
goals, the Code focuses on the implementation of social security in the SADC
region.67It encourages states to work towards the free movement of persons and it
suggests that migration controls should be progressively reduced.68
There is no inclusive or effective social protection scheme in Africa. According to
Udombanat, there is a perception that such a scheme would be limiting and would
affect the economies of adopting countries negatively. The development in SADC
can also be attributed to the ratification of international standards by the SADC
countries. For example the UN International Covenant on Economic, Social and
Cultural Rights, 1966 (ICESCR) has been ratified by almost 12 member states.69
Consequently, many states have developed legislative instruments that are not
compatible with the standards of the ILO.70
5.4
COUNTRIES IN THE SADC REGION
5.4.1 Introduction
In a study that covers the constitutional right to social security in 30 African
countries, Fombat concludes that, since the 1990s, constitutional reforms have
resulted in a significant improvement in the recognition of human rights in Africa.71
63
A17(2)(a) and (b) of the Code.
A17(2) of the Code.
65
Olivier (2012) Part 2 SADC Law J 144.
66
Nyenti and Mpedi(2012) PELJ 257.
67
The SADC Social Security Code refers to the position of migrant workers in particular.
68
A 17(1) of the Code.
69
Mpedi and Smit (2011) 46.
70
Udombanat (2006) Corn Int LJ 218.
71
Fombat (2013) AJICL 1.
64
91 © University of Pretoria
The author mentions that many of the modernized constitutions “now contain
provisions aimed at promoting democratic governance, constitutionalism, respect for
the rule of law and human rights.” The study mentions that 14 out of the 30 African
constitutions contain “social security as a distinct right”.
However, in only in two of those countries, namely South Africa and Kenya,72 this
right, and other related constitutional social security protection, have been specified
in depth. Added to this, in numerous African countries socio-economic rights and
those rights associated with social protection are contained in sections that
categorize them as “state policy” or “fundamental objectives and directive principles”,
which are specified as unenforceable by the judiciary.73
5.4.2 Namibia
In one of South Africa’s neighbouring countries, Namibia, the Constitution of the
Republic of Namibia, 1990 (the Namibian Constitution) grants a number of
constitutional rights to “all persons”.74 Neither the term ‘social protection’ nor ‘social
security’ is mentioned in this constitution. Therefore, the components of social
protection, as defined for purposes of this study, will have to be considered
individually. The entitlement to social protection75 (and even health care) is
dependent on citizenship. The exception, though, is that state hospitals do provide
subsidized health care for non-citizens.76
Namibia, like South Africa, is one of the SADC countries that rely on reform
initiatives to make its social protection systems more comprehensive and inclusive in
its fight to address poverty and job creation.77 It is also one of the richer countries in
72
Kenya will, however, not be one of the countries under discussion.
Fombat (2013) AJICL 12 – 16 mentions that this is especially the case in among others, Lesotho,
Nigeria, Sierra Leone and Tanzania.
74
To name a few: A 8 Respect for Human Dignity “(1) [t]he dignity of all persons shall be inviolable”; A
10 Equality and Freedom from Discrimination “(1) [a]ll persons shall be equal before the law”; and A
16 Property “(1) [a]ll persons shall have the right in any part of Namibia to acquire, own and dispose
of all forms of immovable and movable property individually or in association with others and to
bequeath their property to their heirs or legatees: provided that Parliament may by legislation
prohibit or regulate as it deems expedient the right to acquire property by persons who are not
Namibian citizens.”
75
Protection such as public housing, disability grants and old age pension schemes is restricted to
citizens.
76
Mpedi and Smit (2011)9.
77
Olivier and Mpedi (2004) Vol 28(3) 17.
73
92 © University of Pretoria
the region and migration tends to flow towards this country.78 SADC operates on two
different
non-contributory
schemes,
namely
means-tested
and
universal
programmes. Namibia follows the universal programme.79
National legislation aims to include constitutional provisions and administer these to
the advantage of all persons. The Namibian universal pension scheme, which is
established by the National Pensions Act,80 is one example of the legal social
security entitlement created by national legislation.81 The Namibian government
implemented a fund to provide for payments to employees in cases such as
maternity leave and death.82 In this system, employees, domestic and casual
workers make a contribution.
The Namibian Maternity, Sickness, and Death Fund makes provision for maternity
and sickness benefits.83Namibia has also taken the initiative to develop a medical aid
scheme. These funds are regulated by the Social Security Act.84
The Social Security Act states that the act “shall apply in relation to every employer,
including the State, and every employee.”85 This gives an indication that it will be
applicable to workers as well. The Social Security Act defines ‘employers’ as well as
‘employees’ as “a Namibian citizen or lawfully admitted to Namibia for permanent
residence therein”, when business or employment is conducted outside of the
Namibian border.86 There is an exclusion of most categories of migrant workers in
78
South Africa, Botswana and Namibia.Dekker (2010) SA Merc LJ 390.
Nyenti and Mpedi (2012) PELJ 269.
80
10 of 1992.
81
ILO Social Protection Floors for Social Justice and a Fair Globalization (2012)International Labour
Conference 101st Session Report IV 28.
82
Olivier et al (2003) 23.
83
Nyenti and Mpedi (2012) PELJ 271.
84
34 of 1994. The purpose of this act is “[t]o provide for the establishment, constitution and powers
duties and functions of the Social Security Commission; to provide for the payment of maternity
leave benefits, sick leave benefits and death benefits to employees and to establish for that purpose
the Maternity Leave, Sick Leave and Death Benefit Fund; to provide for the payment of medical
benefits to employees and to establish for that purpose the National Medical Benefit Fund; to
provide for the payment of pension benefits to retired employees and to establish for that purpose
the National Pension Fund; to provide for the funding of training schemes for disadvantaged,
unemployed persons and to establish for that purpose the Development Fund; and to provide for
incidental matters”.
85
S 2.
86
S 1.
79
93 © University of Pretoria
Namibia when the term ‘employee’ or ‘employer’ is used in the different sections of
the Social Security Act.
In African Personnel Services (Pty) Ltd v Government of the Republic of Namibia
and others,87the appellant challenged the constitutionality of a provision of the
Labour Act88 that prohibited the existence of labour brokers. The applicant’s position
is that section 12889 of the Labour Act is inconsistent with the applicant’s right to the
fundamental freedom “to carry on a trade or business” guaranteed to it by article
21(1)(j)90 of the Namibian Constitution. The court remarked that the right, which was
the subject matter of this application, vests in all persons whether they are citizens or
non-citizens of Namibia. However, the court held that nothing precludes the
Namibian parliament from enacting legislation that restricts the enjoyment of the right
to non-citizens who meet prescribed statutory requirements, such as holding a work
permit and permanent resident permit, which allow them to lawfully reside in Namibia
and practice any profession, or carry on any occupation, trade or business.91
The court went on to state that “labour is not commodity”92 and emphasized the
importance of labour legislation in bringing about social justice in the workplace; to
redress bargaining imbalances between employers and employees; and to protect
employees, especially those who are most vulnerable93to exploitation.94 This
statement provides a clear indication that the social protection afforded to workers
can be extended to categories of migrant workers by adopting the existing labour
87
(2011) 32 ILJ 205 (Nms).
11 of 2007.
89
S 128 provides that “(1) [n]o person may, for reward, employ any person with a view to making that
person available to a third party to perform work for the third party. (2) Subsection (1) does not
apply in the case of a person who offers services consisting of matching offers of and applications
for employment without that person becoming a party to the employment relationships that may
arise there from. (3) Any person who contravenes or fails to comply with this section commits an
offence and is liable on conviction to a fine not exceeding N$80,000 or to imprisonment for a period
not exceeding five years or to both such fine and imprisonment. (4) In so far as this section
interferes with the fundamental freedoms in Article 21(1)(j) of the Namibian Constitution, it is
enacted upon the authority of Sub-article 2 of that Article in that it is required in the interest of
decency and morality”.
90
A 21 Fundamental Freedoms provides that “(1) [a]ll persons shall have the right to: (j) practise any
profession, or carry on any occupation, trade or business”.
91
Par 9.
92
Par 70 defines this concept in the following way “[t]he undeniable basic premise thereof is that
labour is not a tradable innate object but an activity of human beings.”
93
Including migrant workers.
94
Par 100.
88
94 © University of Pretoria
laws under the sub-section of labour security. Clearly, the Namibian courts, much
like the South African courts,95 have the willingness to extend the coverage of social
protection through the development of labour security.
Multilateral agreements with other SADC countries have the potential to strengthen
the position of non-citizens in terms of social protection in Namibia.96 An example of
such an agreement is the one between Angola and Namibia, which allows citizens in
border communities to travel freely with only a border pass within a range of 60 km
of the border of each country. To some degree, this could also reflect the impact of
the extensive migration flows between, for example South Africa and Namibia.97
5.4.3 Botswana
Compared to South Africa, Botswana has the older constitution. The Botswana
Constitution, 1966, hardly makes any mention of the protection of social security or
labour security rights, let alone the rights of migrant workers.98 However, the
Constitution of Botswana states that “no person” shall be deprived of his or her
numerous constitutional rights. From a positive viewpoint, it could be interpreted that
these rights are ensured for all individuals in Botswana, regardless of their migration
status. Unfortunately, the Constitution of Botswana makes no specific reference to
migrants, non-citizens or any type of individual not originally from Botswana.
According to Ntseane and Solo:
“[t]he Constitution of Botswana contains a bill of fundamental rights,
containing political and social rights also known as first generation rights.
Since it was crafted as far back as 1966, it does not have socio-economic
rights or second generation rights, as do recent constitutions.”99
However, despite this lack of constitutional protection, a number of ad hoc and
fragmented social protection schemes have been put into place in Botswana.
According to a 2007 World Bank Country Report on Botswana that covered access
to social services for non-citizens in the SADC region, the social protection services
95
Discovery Health Ltd v CCMA 2008 ILJ 1480 (LC) and Kylie v CCMA 2010 (7) BLLR 705 AAH.
Millard (2008) AHRLJ 47.
97
Olivier (2012) Part 2 SADC Law J 144.
98
Fombat (2013) AJICL 13.
99
Ntseane and Solo in Olivier and Kalula (2004) Fiedrih Ebert Stiftung89. The authors mention that
“Botswana has not ratified any international social security conventions nor are there at present any
plans to do so.” Ntseane and Solo in Olivier and Kalula (2004) Fiedrih Ebert Stiftung 92.
96
95 © University of Pretoria
that have been implemented in Botswana include a programme for destitute
persons, an orphan care programme and a universal old-age pension.100 However,
the protection of social security in Botswana is not rights-based, and this means that
those who are in need of assistance have no legal basis upon which to insist on the
provision of social security benefits.101
The so-called Programme for Destitute Persons provides non-citizens with
temporary assistance. However, social assistance in general is limited to citizens
only.102 Botswana is one of seven SADC countries with a very high HIV-infection
rate.103 This has encouraged the government to implement health care services for
everyone. People within the borders of Botswana are also entitled to health care
services through medical aid schemes.104 Similarly to Namibia, Botswana also
operates under the universal scheme.105 It has a universal old-age pension fund,
which covers its citizens of 65 years and older.106
The 2007 World Bank Country Report on Botswana concludes that the Botswana
government has “adopted an exclusive approach with respect to social services for
non-citizens and portability of these services in SADC”.107 The report sums the
situation up by stating that:
“[g]iven the inadequacy of financial revenues, there is an understanding that
neighbouring governments should provide for their own citizens. There are
other realities and challenges with the implementation of existing schemes
such as shortage of personnel, access and adequacy of services, and
financial sustainability of schemes.”108
In 2004, Ntseane and Solo argued that Botswana should ideally conduct a
comprehensive review of all social security programs and that they should be
100
Ntseane and Kholisani (2007) Report to the World Bank 7. Other services referred to in the report
are: the School-Based Food Programme; World War II Veteran’s Allowance; Labour Based Relief
Programme; Programme for Remote Area Dwellers; Education; and Health Care Provision. 101
Ntseane and Solo in Olivier and Kalula (2004) Fiedrih Ebert Stiftung89. Statistics South Africa
Quarterly Labour Force Survey: Quarter 3 (2011) vi. At 92 it is mentioned that “most social security
programs in Botswana are offered as a matter of social policy only. There is no right to social
security and social assistance.”
102
Mpedi and Smit (2011)8.
103
Strode et al (2010) Obiter 460.
104
Mpedi and Smit (2011)9.
105
Nyenti and Mpedi (2012) PELJ 269.
106
Ibid.
107
Fombat (2013) AJICL 21.
108
Ibid.
96 © University of Pretoria
brought under one umbrella ministry. They also suggested that social security
programs should be provided with a legal base.109 Unfortunately, there is no
available literature or evidence to indicate that there is any progress being made
towards the protection of either social protection rights or any other broader social
rights among irregular migrants in Botswana.
South Africa has entered into labour agreements with a number of neighbouring
states, including Botswana. These agreements disclose that they were entered into
in order to regulate the flow of migrant labour from Botswana to South Africa. The
agreements provide that employment may only transpire in accordance with the
requirements of the agreement. These include a citizen of the migrant-sending
country entering South Africa for purposes of employment having in his or her
possession a written employment contract attested in the home country, and the
period of employment not exceeding 24 months.
With some exceptions, recruitment is limited to agencies that have been authorized
to do so. Entering into or remaining in South Africa in contravention of the
agreements is subject to repatriation. One of the agreements between the
Government of the Republic of South Africa and the Government of the Republic of
Botswana is related to: the establishment of an office for a Botswana government
labour representative in South Africa, Botswana citizens in South Africa and the
movement of such persons across the international border.110 Despite the positive
nature of the conclusion of labour agreements with South Africa’s neighbours, these
do have some exclusions, which once again place limitations on the implementation
of the agreements in the field of social protection. Social security, unlike labour
security, is simply a by-product of these agreements.111
Olivier112 further points out that the agreements exclude nationals of the migrantsending countries receiving benefits in accordance with the South African
unemployment insurance, as well as stating that “migrant workers who have to return
to their home country as a result of the agreements are not regarded as contributors
109
Ntseane and Solo in Olivier and Kalula (2004) Fiedrih Ebert Stiftung 94.
South African Treaty Series 3 of 1973. The agreement entered into force on 24 December 1973.
111
Olivier Part 2 (2012) SADC Law J 134.
112
Ibid 135.
110
97 © University of Pretoria
to, and could therefore not benefit from, the Unemployment Insurance Fund.”113
Botswana’s social protection system seems very limited and could be furthered by
implementing it in their legislative system.
5.4.4 Mozambique
Mozambique gained independence in 1975. The Constitution of the Republic of
Mozambique, 2004 (the Constitution of Mozambique)114 was developed as legislative
instrument which contains the rights and obligations afforded to the people of
Mozambique. Article 1 of the Constitution of Mozambique refers to the concept of
social justice by stating that “[t]he Republic of Mozambique is an independent,
sovereign, democratic State of social justice”. The Mozambican state is governed by
the rule of law115 and as interpreted through the Constitution of Mozambique not so
very different from South Africa.116
Nationality in Mozambique may either be by birth or by acquiring such status.117 In
2012 Mozambique issued 1 656 temporary residence permits, only 164 of which was
working permits. In the same year only two permanent residence permits were
issued.118 The Constitution of Mozambique refers to “citizens” as indicated in the
fundamental objectives of the Republic itself.119 The Mozambican government shall
grant asylum to non-citizens during their struggle and to protect human rights.120
There are a number of socio-economic rights entrenched in the Constitution of
Mozambique. The right to work and education as socio-economic rights in 1990 were
furthermore extended by including medical and health care. Notably the provisions in
the Constitution of Mozambique with regards to socio-economic rights have certain
113
S 3(1)(d) of the Unemployment Insurance Act 63 of 2001.
As translated and available at www.mozlegal.com visited on 2013/11/30.
115
A 3 of the Constitution of Mozambique.
116
See Chapter 2 of this dissertation.
117
A 5 of the Constitution of Mozambique.
118
Statistical Release (2012) Documented Immigrants in South Africa, Embargoed until 26 March
2013 53.
119
In a 11 of the Constitution of Mozambique the Fundamental Objectives are listed and refer to
citizens as follows: “c) the building of a society of social justice and the achievement of material and
spiritual well being and quality of life for its citizens; d) the promotion of balanced economic, social
and regional development in the country and e) the defence and promotion of human rights and of
the equality of citizens before the law”.
120
A 20 of the Constitution of Mozambique.
114
98 © University of Pretoria
limitations.121 Both education and health care refer only to the protection, promotion
and benefits of citizens.122
The legislative standards in Mozambique mostly use the term “social security” to
describe a form of social protection. The Social Protection Law123 organized the
Mozambican social protection system into three different levels.124 According to
article 257 of the Labour Law of Mozambique125 the social security system intends to
guarantee the social permanence of workers, in cases of incapacity to work, old age
or death of the bread-winner. The different levels established by the Social
Protection Law each has diverse aims. The first level is mostly state funded and
aims to prevent need and encourage social incorporation for vulnerable groups.126
Mozambique approved the National Strategy for Basic Social Security in April 2010,
as well as the Regulation for the Basic Social Security in December 2009. This was
a step in the right direction for the development of a national social protection
floor.127 The Regulation for the Basic Social Security identifies four different areas of
social action, namely: direct; health; education; and productive. The second level as
stated in the Social Protection Law includes, inter alia, old-age pensions and cash
death grants. Mozambique, unlike South Africa, has established a national or public
retirement scheme,128 which would fall within the scope of social insurance. The third
level was designed to include private insurance in addition to public institutes.129
Furthermore, Mozambique has expanded its own Food Security Subsidy.130 This
Programme was originally expanded on a national level almost 20 years ago and
focuses on developments at the operational level. It also formed the basis of the
121
Mandlate (2010) ESR Review 23.
Aa 113 and 116 of the Constitution of Mozambique.
123
4 of 2007.
124
The different levels are: basic social security, obligatory social security and complementary social
security.
125
23 of 2007. The Labour Law was approved by the Parliament on 11 May 2007. Translated and
available at www.arbitrationmz.com visited on 2013/11/30.
126
Mausse and Cunha (2011) 320.
127
Ibid 315.
128
Olivier Part 1 (2011) SADC Law J 133.
129
Mausse and Cunha (2011) 321.
130
The Food Security Subsidy Programme was developed as the Programa Subsídio de Alimentos.
See also the International Labour Organization, Report of the Advisory Group chaired by Michelle
Bachelet Convened by the ILO with the collaboration of the WHO, Social Protection Floor for a Fair
and Inclusive Globalization, 2011 65.
122
99 © University of Pretoria
progress of the basic social security benefits which are implemented in the country at
this stage. Despite the achievements made by the different programmes and
regulations prevalent coverage remain a challenge.131
In accordance with the Constitution of Mozambique labour is the driving force of
development on an economical and social level.132 The right to work in Mozambique
according to the Constitution of Mozambique is limited to “every citizen”.
Furthermore, workers are granted the right to safety at work, protection and
health.133 This is a clear indication that Mozambique comprehends social protection
in the form of labour security, even though by interpretation of the other fundamental
rights it is not extended to noncitizens.
Article 256(1) of the Labour Law, 2007 states that:
“[a]ll workers shall be entitled to social security, according to the financial
conditions and resources of the development of the national economy.”
The Labour Law contains the strand labour security with regards to migrant workers.
In the context of free movement of persons, migrant workers are protected within the
borders of the country. Article 30 of the Labour Law specifies that migrant workers
have similar rights, obligations and opportunities as other workers within the country.
The protection under social security in accordance with the Labour Law is not limited
to the existence of an employment relationship or an employment contract.134 There
is no indication that the Labour Law is limited to citizens. However, it does refer to
legal employment relationships, thus excluding irregular migrant workers.135
The courts in Mozambique have not adjudicated any situations involving socioeconomic rights, as these courts do not have a right-based approach.136 This is one
of the problems associated with the enforcement of socio-economic rights in
131
Mausse and Cunha (2011) 317.
In a 112 of the Constitution of Mozambique it is indicated that labour “[s]hall merit respect and
protection”.
133
Aa 84 and 85 of the Constitution of Mozambique.
134
It is stated in A 63(4) that “[t]he penalty of dismissal shall not result in the loss of rights arising from
the employee’s registration with the social security system if, on the date when the employment
relationship ceases, the employee meets the requirements for receiving benefits under any arm of
the system”.
135
Within the scope of the application in a 2 it refers to both citizens and foreigners.
136
Mandlate (2010) ESR Review 23.
132
100 © University of Pretoria
Mozambique not only regarding migrant workers, but the citizens of the country as
well. Another example of the challenges in this country is the lack of financial
resources to cater for individuals. Despite these challenges Mozambique has
established justifiable socio-economic rights that could be of great benefit for all
individuals. Mandlate notes that
“[w]here the provisions of constitutions are not clear, they can be interpreted
in accordance with relevant ratified international law”.137
Mozambique accepts international standards and these standards have the same
force in the legal order of the country as infra-constitutional legislative acts of the
Republic.138 There are a number of ILO conventions dedicated to atypically
employed individuals. Mozambique has ratified, inter alia, the Equal Remuneration
Convention, 1951 (No 100) and Discrimination (Employment and Occupation)
Convention, 1958 (No 111). The ILO concluded that in countries such as
Mozambique, key social protection floor programs would cost between 1 and 2 per
cent of gross domestic product (GDP).139 Unlike South Africa, Mozambique has not
signed the ICESCR140, which could, if ratified, make a difference in the further
development of the country’s social protection system.
Bilateral agreements form part of the regulation of social protection between the
different SADC countries. Article 14.5 of the Social Protection Law makes reference
to provisions regarding bilateral social security agreements and the portability of
social security benefits between neighbouring countries. However, unilateral
arrangements regarding portability of benefits are almost completely absent, as
article 15.2 of the Social Protection Law states that
“[s]ubject to contrary provisions contained in “international conventions”,
benefits acquired under compulsory social security are not portable.”141
So-called labour agreements where established between Mozambique and South
Africa with regards to Mozambican mineworkers in South Africa.142 The purpose of
137
Ibid 24.
A 18 of the Constitution of Mozambique.
139
International Labour Organization, Report of the Advisory Group chaired by Michelle Bachelet
Convened by the ILO with the collaboration of the WHO, Social Protection Floor for a Fair and
Inclusive Globalization, 2011 xxvii.
140
The International Covenant on Economic, Social and Cultural Rights, 1966.
141
As quoted by Olivier Part 2 (2012) SADC Law J 151.
138
101 © University of Pretoria
the bilateral agreements was to regulate the flow of migrant labour between the
countries. These agreements contained a number of provisions that portrayed social
protection in some form as a by-product.143 The agreement with Mozambique in
1964 provides for the following:



“[t]he payment of workers’ compensation benefits partly in South Africa and
partly in Mozambique (Article XXII);
The transfer of assets in the estate of a deceased worker, as well as other
‘unclaimed moneys’ due to Mozambique workers, to Mozambique (Article
XXIII); and
Application of South Africa’s Occupational Diseases in Mines and Works Act
78 of 1973 to Mozambique migrant workers who have returned to
Mozambique, as far as mining-related lung diseases are concerned (Article
XXV).”144
Except for the above mentioned agreement, the obligations in the agreements are
mostly aimed at employers and not the South African government. Furthermore,
South Africa drafted an agreement with Mozambique which allows for payments in
respect of employment injuries and diseases to be made in the Republic of
Mozambique. However, it is alleged that these payments don’t reach the
beneficiaries.145 Mozambique and South Africa signed a visa waiver agreement.
Citizens of each country are allowed to stay for up to 30 days in the other country,
without a visa. According to media reports, numerous Mozambicans have
overstayed the prescribed period and have therefore been deported as
undocumented noncitizens.146
Despite the protection these agreements are intended to give, there are a few
reasons why these agreements must be seen as limited in its effect. For example in
South Africa the protection as provided for by workers’ compensation in accordance
with COIDA is not available to domestic workers and therefore affects Mozambican
142
The SA Treaty Series 11/1964 established an agreement between the Government of the Republic
of South Africa and the Government of the Republic of Portugal regulating the employment of
Portuguese workers from the Province of Mozambique on certain mines South Africa. The
agreement entered into force on 1 January 1965. The earliest agreements between Mozambique
and South Africa date back to 1875 till 1928 where the provision of temporary labour from
Mozambique to South Africa was regulated. See also Olivier Part 2 (2012) SADC Law J 134.
143
For example payment for welfare funds to be set up for support if the worker would be send home
due to disablement.
144
See also Olivier Part 2 (2012) SADC Law J 135.
145
Olivier Part 2 (2012) SADC Law J 136.
146
Ibid 137.
102 © University of Pretoria
workers in South Africa.147 Furthermore these agreements effectively exclude
Mozambican citizens from benefiting from unemployment insurance in South Africa
and they cannot claim from the Unemployment Insurance Fund.148 It would be of
great value if the principle of equality of treatment as core of these bilateral
agreements would be implemented with regards to both countries in the
arrangement. Access to the social protection benefits in South Africa for the
Mozambican migrants, as well as in Mozambique for the South African migrants
should fall within the scheme of a public framework. This will form part of the further
development of the intended integration as stated in the SADC Treaty.149
The instruments adopted in Mozambique provide a comprehensive set of standards
with regards to social protection. However, by ratifying more international standards
the country could improve their social protection system and extend their welldeveloped socio-economic rights to more workers, regardless of their migration
status. By ratifying the same international standards as the countries with which
bilateral agreements has been concluded, it would set the standard for equal
treatment of all workers, regardless of where the work would be done.
5.4.5 Lesotho
Olivier acknowledges that “Lesotho is one of the most migrant dependent countries
in the world”.150 The country’s main source of foreign exchange is migrant
remittance. Remittance is mainly used to uphold the minimum living standard of the
migrant worker’s family and to provide for food, security and other needs.151 In
Lesotho, social protection legislation is silent (or vague) about the right to access to
social protection. The country’s social protection legislation does not draw a
distinction between citizens and non-citizens. However, these provisions have never
147
Olivier Part 1 (2011) SADC Law J 135.
Ibid 147.
149
Olivier Part 2 (2012) SADC Law J 155.
150
Olivier Part 1 (2011) SADC Law J 125 – 126.
151
Ibid 126.
148
103 © University of Pretoria
been challenged by non-citizens.152The legislation merely uses the term “employee”
or “worker”.153
Lesotho is moderately reliant on South Africa in the field of social protection.
Lesotho, unlike South Africa, does not have a serious problem of South African
citizens residing in Lesotho as irregular migrants. According to Mpedi and Smit, the
majority of foreigners need to support themselves in Lesotho without any support
from the state.154 The country is currently in the process of developing its own social
protection system. It will mainly focus on coverage for old age, invalidity, death and
maternity.155
The Constitution of Lesotho, 1993, does make provision for economic and social
rights. These rights include the right to education.156 The Free Primary Education
programme was implemented in January 2000. Free primary education is accessible
to anybody as long as they legally reside in Lesotho. Another form of social
protection is health care. In Lesotho, access to health care is not given freely to the
citizens of the country. Lesotho has no public housing as a form of social protection;
no provision is made to provide shelter for citizens.157 This is something that Lesotho
can definitely learn from South Africa, as South Africa provides shelter to citizens
who cannot afford to build houses themselves.158 However, Lesotho is drafting a
policy to attend to this problem. The National Shelter Policy states that its goal is to
provide guidelines for the government to promote, protect and ensure full and
progressive realization of the right to adequate shelter for all.159 The policy’s goal is
based on accessibility, equity and affordability.160
152
Mpedi and Smit (2011) 9.In South Africa non-citizens challenged the legislation dealing with the
right to social security in Khosa v Minister of Social Development; Mahlaule&Others v The Minister
of Social Development & Others 2004 (6) SA 505 (CC) and Government of the Republic of South
Africa other v Grootboom and Others 2001 (1) SA 46 (CC).
153
Mpedi and Smit (2011) 23.
154
Ibid 81.
155
Becker and Olivier (2008) 148.
156
S 44 of the Constitution of Lesotho.
157
Regardless of whether a person is a citizen or a temporary resident.According to the Marketing
Manager of the Lesotho Housing Cooperation and Development in an interview conducted on 10
September 2008.
158
Mpedi and Smit (2011) 78.
159
Draft National Shelter Policy of 2009.
160
This is according to Ms Nthona, the Housing Officer of the Ministry of Local Government and
Chieftainship Affairs, during an interview on 11 September 2008. See also Mpedi and Smit (2011)
79.
104 © University of Pretoria
There are informal agreements between South Africa and Lesotho, in respect of
which South Africa is considered a receiving country for migrants.161 Agreements
between the Government of South Africa and the Government of Lesotho relating to
the appointment of a labour representative office in South Africa, Lesotho citizens in
South Africa and the movement of such persons across the border have been
established to make a contribution to the regulation of the flow of migrant workers.162
Despite the existence of the abovementioned programs, forms of social protection
and agreements between Lesotho and South Africa, social protection benefits in
Lesotho are still limited to citizens. Education, health care and housing are not the
only categories under the concept of social protection. Lesotho may extend their
social protection, when implemented, to other individuals within the available
resources of the country.
5.4.6 Swaziland
Swaziland is still in the early stages of the development of social protection.163
Swaziland has some categories of social protection that could be classified under the
strands of social assistance and social insurance. Swaziland’s Public Health Act164
offers health care for each person within the Kingdom through a public healthcare
system. The different groups of migrants only have partial access to the right to
treatment in affordable public health centres.165 The Civil Servants Referral
Scheme166 and the Phalala Fund167 are two healthcare programmes established by
the state to facilitate medical treatment of Swazi citizens abroad.
Swaziland introduced workmen’s compensation in 1983. This is based on employer
liability for occupational injuries and diseases, permanent disabilities and special
needs.168 The workmen’s compensation, together with a provident fund and a public
service pension fund, falls under the social assistance strand of social protection.
161
Millard (2008) AHRLJ 44.
South African Treaty Series 1 of 1973. The agreement entered into force on 24 August 1973.
163
Becker and Olivier (2008) 151.
164
5 of 1969.
165
Mpedi and Smit (2011)10 – 11.
166
Assist in evacuating public service employees abroad when dealing with serious medical
conditions. See Mpedi and Smit (2011) 109.
167
Pay the medical fees of the citizens of Swaziland with no income who need medical attention
abroad. This fund can also be accessed by non-public service employees.
168
Becker and Olivier (2008) 151.
162
105 © University of Pretoria
The Swaziland National Provident Fund was established in 1974, and covers all
employed persons.169 All employers need to be a member of the fund and pay a
contribution for every staff member. The Public Service Pensions Fund was
established to manage and administer pensions of government employees. This
fund gives no indication that it is available to non-citizens in Swaziland.
Access to social security in Swaziland is based on a person’s citizenship, and in
some instances, their residential status as well.170 With regard to health care, only
Swazi citizens can access the Phalala Fund, even though migrants do have the right
to be treated in public health facilities. Old-age grants are restricted to citizens of the
country only. Social insurance is not extended to non-citizens. Section 129 of the
Employment Act171 indicates that sickness benefits can be accessed by citizens,
permanent residents, temporary residents and irregular migrants who fall sick while
formally employed.
The legislative instruments, programs and social security outline in Swaziland are
similar to South Africa. Both countries have limitations in their provisions regarding
migrant workers. Social grants in South Africa, like Swaziland,172 were available to
citizens only. This exclusion was dealt with in the South African courts and some of
the social protection benefits were extended to regular migrants. In South Africa, this
is only done within the available resources that the government can afford.
Swaziland, much like South Africa, shows a willingness to include migrant workers in
the accessibility of social protection under labour security. Unfortunately, it is once
again limited due to the fact that the benefits are restricted to those in formal
employment.
While dealing with some of the other SADC countries it was indicated that South
Africa has entered into labour agreements with most of its neighbours. A labour
agreement is, for example, an agreement between South Africa and the Government
of the Kingdom of Swaziland relating to the establishment of an office for a
169
Excluding self-employed persons, casual employees, persons employed in households and noncitizens.
170
Mpedi and Smit (2011) 112.
171
5 of 1980.
172
Mpedi and Smit (2011) 112 and 113.
106 © University of Pretoria
Swaziland government labour representative in South Africa and the movement of
certain South African citizens across the common border.173
Even though these agreements make a contribution to the development of the
regulation and, to some extent, protection of migrant workers moving between the
different SADC countries, there are still limitations to their effectiveness. One
example is that repatriation regulation is dealt with together with labour migration.
This is indicated in an agreement between Swaziland and South Africa, where the
function of government labour offices and representatives established under the
agreement is to:174
“[a]ssist the Government of the Republic of South Africa with the repatriation
of sick, injured or destitute Swaziland citizens who are or were employed in
the Republic of South Africa and of other such citizens whose presence in the
Republic of South Africa is or has become unlawful.”
5.4.7 Mauritius
Mauritius is one of the few African countries with a close to complete social
protection floor of non-contributory benefits.175 It is a welfare state, which indicates
that it has a comprehensive social protection system for the whole population. This
country does not have a national poverty line or minimum wage. The social security
procedures in Mauritius include health services and old-age, disability and death
benefits, which are available through a universal social insurance system.176
Employees receive earning-related pensions, although the general pension system
covers all residents.177 Mauritius makes provision for an old-age, disability and
survivor pensions fund, under their universal programme.178
Education179 and health care180 are free in Mauritius. Education facilities are free to
all children of citizens. These facilities are only free to the children of non-citizens in
173
South African Treaty Series 3 of 1986. The agreement entered into force on 22 August 1975.
Olivier Part 2 (2012) SADC Law J 135.
175
ILO, Social Protection Floors for Social Justice and a Fair Globalization, (2012),International
Labour Conference, 101st Session Report IV 40.
176
Becker and Olivier (2008) 150.
177
Ibid.
178
Nyenti and Mpedi (2012) PELJ 269.
179
From primary to university level.
180
Including tertiary care.
174
107 © University of Pretoria
schools directly operated by the Ministry of Education.181 Social assistance schemes
are regulated by the Social Aid Act, 1983, and the Unemployment Hardship Relief
Act, 1983. These acts make provision for the payment of social aid or unemployment
hardship relief and the schemes, similarly to South Africa’s, are means-tested.
Where it is established that the head of a household is unable to earn a living182 and
cannot provide for their family, social aid will be paid to such a person.183 Social aid
is found not to be payable to non-citizens in Mauritius, when the Deportation Act,
1968, is interpreted.184 Unemployment hardship relief benefits are awarded on the
same basis as social aid, and are therefore also not available to migrants. Mauritius,
much like South Africa, provides support for individuals who cannot afford to own a
house. The government implemented the National Housing Development Company
to assist low-income households.185 Housing provided by government-owned
companies is restricted to citizens only.
There is no social insurance scheme for health care in Mauritius, and free health
services are offered to every person in the country, including non-residents and
migrants. In Mauritius, basic universal pensions, as part of social insurance,
constitute the largest part of their social protection system. These are regulated by
the National Pensions Act, 1974, and the benefits are paid on a universal basis.
Universal benefits are paid to citizens as well as to non-citizens residing in the
country.186 Mauritius truly has a wide and developed social protection system. It has
implemented a number of systems and provides effective benefits for citizens. It is,
however, clear that most of the social protection is restricted to citizens only. There is
no indication that the country has any intention to include migrant workers in any of
its social protection systems.
181
Mpedi and Smit (2011) 104.
For example, due to illness, loss of employment or imprisonment.
183
Mpedi and Smit (2011) 93.
184
S 4 and Regulation 3(1) of the Social Aid Regulation, 1984.
185
Mpedi and Smith (2011) 98.
186
Reg 3(1) of the National Pensions (Non-Contributory Benefits) Regulations, 1977 states that “[n]o
claim shall be entertained unless the claimant is residing in Mauritius”.
182
108 © University of Pretoria
5.5
CONCLUSION
The SADC region, and South Africa in particular, is experiencing significant
challenges pertaining to irregular migration, unemployment, the spread of HIVinfected individuals and xenophobia. There can be no doubt that governments in
Southern Africa who need to take steps to improve the plight of migrants, who are a
vulnerable group of people. There is a definite increase within the SADC region in
undocumented and irregular migrants, owing to the fact that most migrants have no
intention of staying in the country in which they work and will remain irregular or
undocumented.187
SADC has taken tentative steps to implement standards to protect migrants, and
these instruments recommend that the ILO Social Security (Minimum Standards)
Convention should be adhered to. SADC has also developed the Code. Although the
Code is non-binding, it determines that illegal migrants should be provided with
“basic minimum protection”. Even though these are positive sentiments, there is
limited evidence that practical steps have actually been taken in the SADC region to
give effect to these sentiments.
Most migrant-receiving countries are starting to view migration as a threat and
obstacle rather than an opportunity, and most have no legislation to protect all
migrant groups.188 Migrants have played an important role in the past in developing
the economies of receiving countries, and can do so in the future. Added to this,
people have the constitutional right to freedom of movement.189
Namibia is one of the SADC countries with a higher flow of migration, since this
country has a well-developed economy. The Namibian Constitution does not mention
social protection in any detail, even though it does have legislation to administer
social security.190 The social protection in Namibia is limited to citizens and
permanent residents. The Namibian Constitution is applicable to both employees
and employers, thus limiting the scope of the Namibian Constitution, owing to the
fact that employers and employees are defined as citizens and/or permanent
187
Dekker (2010) SA Merc LJ 391.
Olivier Part 1 (2011) SADC Law J 128.
189
S 21 of the Constitution of the Republic of South Africa, 1996.
190
The Social Security Act 34 of 1994.
188
109 © University of Pretoria
residents. The Namibian court has dealt with cases concerning some form of social
protection, as well as the possibility of the government restricting rights to citizens
only. The court went on to indicate that “labour is not commodity” and explained the
need to protect migrant workers.
Most of the migrants flowing into South Africa come from countries such as
Mozambique. Mozambique has entrenched socio-economic rights into the
Constitution of Mozambique. These rights are still limited to citizens only. The
Mozambican legislative system with regards to social protection has not been
developed to include migrant workers, whether they are regular or irregular. Despite
these limitations Mozambique has adopted
a number
of instruments
to
comprehensively regulate social protection.
The agreements between South Africa and Mozambique seem to form the basis of
the development for comprehensive bilateral agreements. As stated in the previous
discussion, social protection is usually a by-product to these agreements intentions.
The inclusion of extensive social protection provisions in bilateral agreements is
unavoidable. Dedicated social protection arrangements between countries would be
a universal best practice.191
Botswana, as one of the SADC countries with a stronger economy, also hosts a
large number of migrants seeking better work opportunities and basic living
standards. Despite the fact that the Constitution of Botswana makes no reference to
social protection, let alone labour security or the situation regarding migration, it has
implemented numerous programmes to contribute to the development of social
protection. These programs only provide for temporary assistance. The social
security system in Botswana is not rights-based and therefore not enforceable by
law. Botswana can improve its social protection system by utilizing a rights-based
system as followed by South Africa.
In Lesotho, the social protection legislation does not make a distinction between
citizens and non-citizens. The country is currently developing its own social
191
Olivier Part 2 (2012) SADC Law J 158.
110 © University of Pretoria
protection system. Lesotho ensures socio-economic rights, such as education, to
anyone residing in the country legally. The right to health care is, however, not given
to everyone freely. Lesotho also does not have a public housing program for citizens
who cannot afford to build their own houses. Although Lesotho and South Africa
have informal agreements, there are still no guaranteed social protection benefits for
migrant workers who work between these two countries.
Swaziland is also still in the early stages of developing its social protection system.
This country does have some legislation in place to deal with social protection in the
form of the different strands defined in the previous chapters. Permanent residents,
refugees, irregular migrants and temporary residents do have access to social
insurance in the form of the Swaziland National Provident Fund and private health
care.192 Once again, reference is made to the agreements between South Africa and
another one of its neighbouring countries. These agreements are there to allocate
some degree of protection to migrant workers flowing from the one country to the
other.
In Mauritius, basic social protection benefits, such as education and health care, are
free. This is a significant occurrence, since most other SADC countries simply do not
have the available resources to ensure the basic living standards of their citizens.
South Africa is the largest host of migrants in the SADC region, and a country with
one of the strongest economies. Despite this, South Africa will not be able to provide
free benefits to all of its citizens. Mauritius excludes most categories of migrant
workers from social protection benefits and limits those that are available, such as
health care.
Migrants are as much a part of the SADC region as the very ground that forms the
individual countries. It will never be possible to protect all migrants flowing from one
country to another, but it is possible to remain humane and acknowledge that they
are here to stay.
192
Mpedi and Smit (2011) 113.
111 © University of Pretoria
CHAPTER 6
CONCLUSION
6.1
INTRODUCTION
112
6.2
CONCLUDING REMARKS
114
6.2.1 International Organizations
114
6.2.2 SADC and Neighbouring Countries
116
SOUTH AFRICA: LIVING INSIDE THE PROBLEM
118
6.3.1 Introduction
118
6.3.2 Socio-economic Rights
119
6.3.3 Labour Security
121
6.3.4 Migration
122
RECOMMENDATIONS AND STRATEGIES
123
6.4.1 Social Grants
123
6.4.2 Law Reform
125
6.3
6.4
6.1
INTRODUCTION
In this study, the social protection, if any, afforded to migrant workers in South Africa
was evaluated. Some concepts needed to be defined, interpreted and understood to
gain insight into the problem. Social protection is a part of the field of law, which is
continuously being developed. This area of law started to accommodate sections of
the community who could no longer provide for themselves because of numerous
factors.1 By the 1960s, social protection measures were introduced by more
developed countries through welfare systems. These systems incorporated
strategies that included the whole population and that would improve the living
conditions of those caught in economic and social despair.2 The development of
social protection was categorized by two very different approaches.3 The one formed
the basis of insurance-based social protection, and the other emphasized minimum
income-protection by the state.
1
Strydom et al (2006) 1. Examples are people who fell sick or could no longer work due to old age, as
well as victims of the different World Wars.
2
Richter (2006) SAJHR 197.
3
The Bismarckian and Beveridge systems.See Strydom et al (2006) 4.
112 © University of Pretoria
The concept of social protection is wider than the terms mostly associated with this
concept, such as social security, social assistance and social insurance. Social
protection has been defined by numerous international organizations, national
instruments, as well as academic writers. Different international standards and
instruments have been adopted to give effect to the social protection afforded to
migrant workers.4 For the purposes of this dissertation, the strands of social
protection acknowledged and evaluated are social assistance, social insurance and
labour security.5
South Africa has one of the strongest economies, as well as the largest host of
migrants, in the Southern African Development Community (SADC).6 The South
African community is diverse and different needs were recognized. Policymakers
developed legislative instruments in order to provide for, protect and include all the
rights associated with the needs of residents of South Africa. Originally, the concept
of social protection in South Africa was defined by two main components, namely
social assistance7 and social insurance.8 The perception regarding social protection
has changed through the inclusion of section 27 in the Constitution of the Republic of
South Africa, 1996.9
Social protection, in some instances, is limited to citizenship and/or an excising
contract of employment. The South African courts have shown a willingness to
extend social protection to migrants and consider the limitations associated with
social protection. Migration is a concept affecting almost the whole of the African
continent.10 Most of the migrants in South Africa flow from neighbouring SADC
countries. These countries have predominantly limited forms of social protection
implemented into their regulatory frameworks. A comparison was drawn between
South Africa and some of its neighbouring countries, and the existing agreements
between these countries were examined.11
4
See Chapter 2 and 4.
See Chapter 2.2.2.
6
Olivier (2011) Part 1 SADC Law J 127. See also Dekker (2010) SA Merc LJ 390.
7
The Social Assistance Act 13 of 2004 regulates social assistance in South Africa. See also Strydom
et al (2006) 8.
8
Strydom et al (2006) 6. This was evaluated in Chapter 3 of this dissertation.
9
Hereinafter the Constitution.
10
See Chapter 4.4.2.
11
See Chapter 5.
5
113 © University of Pretoria
6.2
CONCLUDING REMARKS
6.2.1 International Organizations
Social protection is acknowledged and implemented as a human right by both the
International Labour Organization (ILO) and the United Nations (UN).12 The
Constitution states that international law must be considered when interpreting the
rights in the Constitution, as well as any other legislative instruments.13 Therefore,
international organizations play a significant role in the development of social
protection and migration and must be considered.
The primary goal of the ILO is to endorse opportunities for all individuals to acquire
civilized work or employment, “in conditions of freedom, equity, security and human
dignity.”14 The ILO, in its definition of social protection, once again focuses on the
promotion of measures to ensure decent living (and working) standards for all
members of society who cannot provide for themselves.15 Numerous conventions,
recommendations and standards have been developed by the ILO to regulate social
protection, labour and migration.16
One of the aspects acknowledged by the preamble of the ILO Constitution is the
protection of the wellbeing of workers employed in countries other than their own.17
The interests of workers fall within the social protection sphere. The Decent Work
Agenda elevated certain objectives to extend the concept of social protection. These
objectives include the promotion of labour protection, the extension of the
12
See Chapter 1.1.1, as well as Chapter 2.
Ss 39(1)(b), 232 and 233 of the Constitution.
14
Decent Work Agenda available on http://www.ilo.org/public/english/support/lib/century/index6.htm,
visited on 2013/03/15 and http://www.ilo.org/global/about-the-ilo/decent-work-agenda/lang-en/index.htm, visited on 2013/03/12. Also see Van Ginneken(2003) Int Lab Rev 279.
15
See ILO World Labour Report: Income Security and Social Protection in a Changing World (2000)
29; ILO Principles of Social Security (1998) 8.
16
See the discussion in Chapter 2.2.3 and Chapter 4.4.4.1.
17
Preamble
of
the
Constitution
of
the
ILO
available
at
http://www.ilo.org/public/english/bureau/leg/download/ constitution.pdf visited on 2012/12/20.
Dupper (2007) Stell LR 225 also mentions that “[a]t the First Session of the International Labour
Conference in 1919, a recommendation [The Reciprocity of Treatment Recommendation, 1919
(N0 2)] was adopted which already reflected the two main aims of the ILO in this area, namely
equality of treatment between nationals and migrant workers, and coordination of migration
policies between States.”
13
114 © University of Pretoria
effectiveness of social security schemes and the protection of vulnerable groups,
including migrants.18 The ILO follows a universal approach to social protection.19
The first form of social protection acknowledged by the ILO was social security,
when the Social Security (Minimum Standards) Convention, 1952 (No 102) was
adopted. This convention laid down the basis for the development of social security
and established the requirements for a social security system in a country that has
ratified the convention.20 The ILO refers to labour security as employment security,
and the Termination of Employment at the Initiative of the Employer, 1982 (No 158)
falls under this section. This convention is not limited to citizens of the ratifying
country, although it excludes certain categories of workers in some provisions.21
When the ILO developed the Migrant Workers (Supplementary Provisions)
Convention, 1975 (No 143), it was recognized that everyone has the right to leave
their home country. The ILO has a number of conventions dedicated to regulating
international labour markets.22 Some of these conventions acknowledge irregular
migrants and extend protection to these migrants.23 None of these conventions draw
a distinction between temporary and permanent residents or irregular and regular
migrant workers. Despite this, none of these conventions provide protection to
irregular migrants explicitly.24 The ILO encourages the adoption of bilateral
agreements between countries to regulate migration. These agreements aim to
18
Some of the objectives are “i.) [e]xtending the coverage and effectiveness of social security
schemes; ii.) Promoting labour protection, which comprises decent conditions of work, including
wages, working time and occupational safety and health, essential components of decent work; iii.)
Working through dedicated programmes and activities to protect such vulnerable groups as migrant
workers and their families; and workers in the informal economy.” Available on
http://www.ilo.org/global/about-the-ilo/decent-work-agenda/social-protection/lang--en/index.htm
visited on 2012/06/19.
19
“Social protection for all.”See Rodgers et al (2009) 139.
20
Strydom et al (2006) 6 and 326.
21
A 2 of C158 of 1982 states that “[a] Member country may exclude the following categories of
employed persons from all or some of the provisions of this Convention: (a) workers engaged under
a contract of employment for a specified period of time or a specified task; (b) workers serving a
period of probation or a qualifying period of employment, determined in advance and of reasonable
duration; (c) workers engaged on a casual basis for a short period”.
22
Migration for Employment Convention, 1949 (Revised) (No 97) and the Migrant Workers
(Supplementary Provisions) Convention ILO, 1975 (No 143).
23
Convention 143 of 1975.
24
See Chapter 4.4.4.1.
115 © University of Pretoria
regulate the obligations of the different countries with regard to the difficulties that
migrants face.25
The
ILO’s
conventions
and
recommendations
are
well
developed
and
comprehensive instruments; however, they have no effect if they are not
implemented and ratified by a country.26 Even though the ILO usually has the
responsibility of protecting the welfare of workers, it was sidestepped when the UN
adopted the International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families in 1990 (the International Convention). The
International Convention confirms the principle of the territorial sovereignty of each
country in regulating the flow of migrants across the borders of that country.27
The International Convention defines migrant workers as people who are engaged in
remunerated activities in a state where that person is not a national28 and divides
migrants into different categories.29 According to Dupper, the International
Convention is described as the “epitome of international human rights” and extends
to vulnerable groups globally.30
6.2.2 SADC and Neighbouring Countries
SADC consists of a number of countries and has been declared as a free-trade
zone. The SADC Treaty encourages a collaborative approach in the region by
developing regional social security systems.31 Social protection in the SADC region
is not regulated comprehensively. The SADC Treaty does not cover nondiscrimination on the grounds of citizenship.32 The SADC Charter aims to harmonize
the social protection of those seeking work and those who are already employed.33
The SADC Social Security Code (the Code) requires that irregular migrants are
protected by the laws of the migrant-receiving country by providing them with
25
See the discussion in Chapter 4.4.4.1.
Mpedi and Govindjee (2009) Obiter 781.
27
A 79 of the International Convention.
28
A 2.
29
Aa 57 – 63.
30
Dupper (2007) Stell LJ 226.
31
Nyenti and Mpedi (2012) PELJ 253.
32
A 6(2). Also see the discussion in Chapter 5 par 5.3.
33
A 10 of the SADC Charter.
26
116 © University of Pretoria
minimum basic protection.34 In SADC, migrants seek the countries with the strongest
economies.
SADC also encourages bilateral and multilateral agreements between the SADC
countries. SADC developed the Draft Protocol on the Facilitation of Movement of
Persons in SADC. The Draft Protocol has a number of objectives, and if ratified and
implemented by the SADC countries, it could pave the way to comprehensive
agreements. South Africa has concluded a few agreements with some of its
neighbouring countries. Namibia’s social protection is limited to citizens only. The
Namibian court indicated a willingness to extend social protection in the form of
labour security, as there is a need to protect migrants. Botswana is one of the
neighbouring countries with which South Africa has labour agreements.35 These
agreements are developed to provide social protection on the same level as that
given to nationals in the same position. Social protection in Botswana is, however,
not enforceable by the law, as it is not rights-based.
The Constitution of Mozambique has entrenched socio-economic rights into their
legal system. These rights are limited to the citizens of Mozambique. The
Mozambican legislative instruments do not make specific mention to social
protection
for
migrant
workers.
However,
Mozambique
has
developed
comprehensive regulations and standards to achieve a well-developed social
protection system. Mozambique is the SADC country with the most comprehensive
bilateral agreements with South Africa. These agreements, together with the SADC
standards and the already developed social protection instruments in the country,
could lay down the foundation for a comprehensive social protection system to the
advantage of all people within the SADC region entering Mozambique.
Lesotho is still developing its own social protection system and does not distinguish
between citizens and migrants. It is one of the few countries where health care is not
offered to the community free of charge. The social protection system in Swaziland is
in its early stages, even though it is regulated by legislation. Most of the categories of
migrants in Swaziland have access to social insurance. The labour agreements
34
35
A 17(3) of the Code.
South African Treaty Series 3 of 1973.
117 © University of Pretoria
between South Africa and Swaziland do not provide sufficient protection for any
workers, regardless of their citizenship.
In Mauritius, on the other hand, basic social protection is free. However, migrant
workers are excluded from most of the social protection offered. South Africa, as the
country with the most migrants, may gain knowledge from the development of social
protection systems in the different neighbouring countries (especially Mauritius), as
well as learn from its mistakes to better the social protection system in the Republic.
6.3
SOUTH AFRICA: LIVING INSIDE THE PROBLEM
6.3.1 Introduction
In South Africa, social protection and migration are governed by a regulatory
framework. Human rights are entrenched in the Bill of Rights in the Constitution.36
Some of these rights are afforded to everyone,37 while others are limited to citizens
only.38 Furthermore, the Constitution acknowledges the sovereignty of the
Constitution as the supreme law of the Republic and the principle that every country
may govern themselves. South Africa took the bold step of including social protection
as a human right in the Constitution. The Constitution contains the socio-economic
rights, as well as labour security rights, associated with social protection. These
rights are therefore protected for everyone within reason and the available
resources. The Constitution also has a provision dedicated to the rights associated
with migration.39 This right is not only extended to citizens.
These rights are established further by the different legislative instruments applicable
to each strand of the definition of social protection and migration. These instruments
were evaluated during the assessment of the research question, together with the
extension of social protection by the courts. The South African courts have shown
willingness when dealing with social protection to use international organizations’
standards as guidelines, even when having the means to execute them.40 The South
36
Chapter 2 of the Constitution.
For example the right to life in s 11.
38
In s 22 the right to freedom of trade, occupation and profession is only guaranteed to citizens.
39
S 21 states that everyone has the right to freedom of movement.
40
Grootboom par 26 64D-E and Discovery Health Limited v CCMA & others [2008] 7 BLLR 633 (LC)
par 46.
37
118 © University of Pretoria
African legislative framework is well developed; however, it is not always
comprehensive in its coverage.
6.3.2 Socio-economic Rights
Under the socio-economic rights section, social assistance and social insurance
were discussed collectively. The main piece of legislation regulating social
assistance is the Social Assistance Act (SAA).41 The SAA defines social assistance
as social grants.42 The SAA deals with the right to social security as entrenched in
the Constitution43 by making provision for social grants. These grants are divided into
a number of categories44 and consequently exclude some members of the
community.45 Coverage in accordance with the SAA is not linked to being an
employee. According to South African legislation, only migrants with permanent
residence status or refugees may access social assistance. The same rights do not
extend to irregular migrant workers, nor is there any reference made to temporary
residents in the SAA.
Social insurance in South Africa is regulated by numerous acts.46 Most of these
instruments are employment-based.47 The UIA establishes an unemployment
insurance fund. Both employers and employees contribute to these funds, and the
UIA only applies to employees. However, the UIA does not apply to persons who
enter the country for work purposes who are required to leave the Republic upon the
termination of their employment.48 COIDA makes provision for compensation for
injuries sustained in the workplace that result in occupational injuries, diseases or
death.49 Migrant workers are not excluded from the compensation fund established
41
13 of 2004.
S 1 of the SAA.
43
S 27 of the Constitution.
44
S 4 of the SAA.
45
See the discussion in Chapter 3 par 3.2.2.
46
The Unemployment Insurance Act 63 of 2001 (UIA), the Unemployment Insurance Contribution Act
4 of 2002 (UICA) and the Compensation for Occupational Injuries and Diseases Act 85 of 1993
(COIDA) are some of the relevant acts that were discussed.
47
Excluding the Road Accident Fund Act 56 of 1996.
48
S 3(1)(d) of the UIA indicates that “[p]ersons who enter the Republic for the purpose of carrying out
a contract of service, apprenticeship or learnership within the Republic if upon the termination
thereof the employer is required by law or by the contract of service, apprenticeship or learnership,
as the case may be, or by any other agreement or undertaking, to repatriate that person, or that
person is so required to leave the Republic, and their employers.” See also Chapter 3 par 3.2.3 of
this dissertation.
49
Long title of COIDA.
42
119 © University of Pretoria
by COIDA. Individuals have to qualify for compensation, and the act has numerous
exclusions, thus limiting the social protection of some community members.50 South
Africa does not have a public (national) retirement scheme, and this is therefore
mostly arranged by private providers. This consequently results in a need for
personal contributions to private retirement schemes and most of the community
cannot afford this.51
The Constitutional Court has had the opportunity to give content to the socioeconomic rights in the Bill of Rights and to either limit or extend social protection
rights in general. Some decisions have adopted a narrower approach and others
have made a more generous interpretation of the law. In Soobramoney, the court
was inhibited by the realities of the availability of resources and it was not willing to
extend emergency medical treatment to the patient. The court stated that the state
only has an obligation “within its available resources”.52 The court held that the
government needs to focus on the broader community, rather than an individual.53
The Constitutional Court chose a weak remedy instead of a more personal remedy in
Soobramoney and was against a generous awarding of socio-economic rights.54
In Grootboom and Khosa, the court adopted a more generous view. It is submitted
that the court followed the correct approach by extending protection to vulnerable
and poor people. Grootboom is said to be the most significant court case in this area
and set the basis for future assessment of socio-economic rights.55 The court
focused on whether or not the adopted measures were reasonable.56 The
50
S 1 of COIDA. “‘employee’ means… but does not include – (i) a person, including a person in the
employ of the State, performing military service or undergoing training referred to in the Defence
Act, 1957 (Act No. 44 of 1957), and who is not a member of the Permanent Force of the South
African Defence Force; (ii) a member of the Permanent Force of the South African Defence Force
while on ‘service in defence of the Republic’ as defined in s 1 of the Defence Act, 1957; (iii) a
member of the South African Police Force while employed in terms of s 7 of the Police Act, 1958
(Act No. 7 of 1958), in ‘service in defence of the Republic’ as defined in s 1 of the Defence Act,
1957; (iv) a person who contracts for the carrying out of work and himself engages other persons to
perform such work; (v) a domestic employee employed as such in a private household.”
51
See Chapter 3 par 3.2.3.
52
As stated in s 27(2) of the Constitution.
53
Mbazira (2011) SAPL 66.
54
See the discussion in Chapter 3 par 3.3.2.
55
Wesson (2004) SAJHR 284.
56
Grootboom par 41.
120 © University of Pretoria
Constitutional Court, after evaluating the facts, stated that the state breached its
constitutional obligation by not having suitable programs.57
In Khosa, the court acknowledged that the minority rights of migrants must be
protected against the rights of the majority.58 The court extended social assistance in
the form of social grants to individuals with permanent residence status by including
the words “permanent residents” in the provisions of the SAA.59 In Larbi-Odam, the
court struck down regulations discriminating against permanent residents. None of
the court cases indicated that the courts would be willing to extend socio-economic
rights to irregular migrants. The courts showed readiness to extend socio-economic
rights to migrants within available the resources and protection, while acknowledging
that it could place an additional burden on the state.60
6.3.3 Labour Security
Labour security is regulated by different legislative instruments. Three main acts
were evaluated during the course of this dissertation.61 The LRA, inter alia, protects
workers against unfair dismissal.62 The EEA aims to achieve equity in the workplace
by eliminating unfair discrimination.63 The Discrimination (Employment and
Occupation) Convention, 1958 (No 111) should be considered in accordance with
the international obligations of the republic as stated in the Constitution.64 The BCEA
establishes and enforces the basic conditions of employment.65 These acts provide
some form of labour security and enhance social justice.
The courts have specified that there is a readiness to broaden labour security
provisions to include irregular migrants (Discovery Health (ILJ) and “Kylie”) in the
sphere of labour security. The court in Discovery Health (ILJ) provided a broader
definition of ‘employee’. The court held that the irregular status of a migrant worker
57
See also Chapter 3 par 3.2.2.
Khosa par 71.
59
Also see Chapter 3 par 3.2.2.
60
Khosa par 58 – 62.
61
The Labour Relations Act 66 of 1995; the Employment Equity Act 55 of 1998; and the Basic
Conditions of Employment Act 75 of 1997.
62
Chapter VII of the LRA.
63
S 2 of the EEA.
64
S 3 of the EEA.
65
S 2 of the BCEA.
58
121 © University of Pretoria
does not render an existing contract of employment void.66 Furthermore, the court
concluded that inconsistencies with the Immigration Act 13 of 200267 do not
invalidate the contract and the worker remains an employee in accordance with the
LRA.
There is a tension between the protection of labour markets and the fundamental
rights of those seeking work in countries other than their own.68 In “Kylie”, the court
held that the definition according to the LRA is wide enough to include an individual
whose contract of employment is unenforceable according to the common law.69 It
could be interpreted that in both of these cases the scope of the application of the
labour security legislation was extended, rather than limited.
6.3.4 Migration
According to a study of five SADC countries, 86% of migrants in the region are found
in South Africa.70 Migration is generally defined as the movement of people. In South
Africa, there are mainly four different categories of migrants, namely: permanent
residents, temporary residents, refugees and asylum-seekers, and irregular
migrants. Originally, the Aliens Control Act (ACA)71 governed migration in South
Africa. It aimed to regulate entry into the country according to the measures of the
previous government. The ACA was found to be inconsistent with the Constitution.
The Refugees Act72 governs refugees and asylum-seekers in the country. Refugees
are allowed to seek work in the Republic.73 Asylum-seekers, however, do not have
the same rights.
The White Paper on International Migration aims to protect all migrants, including
irregular migrants. Furthermore, it was developed to integrate South Africa into
SADC by dealing with migration in an international context. It also intends to manage
the willingness of the country to manage the global refugee matter.74Migration in
66
Discovery Health (ILJ) par 3.
Hereinafter the Immigration Act.
68
Kapindu (2011) AHRLJ 100.
69
“Kylie” par 3.
70
Olivier (2011) Part 1 SADC Law J 144 – 145.
71
96 of 1991.
72
130 of 1998.
73
S 27(f) of the Refugees Act.
74
See Chapter 4 par 4.4.2.3.
67
122 © University of Pretoria
South Africa took a new turn with the development of the Immigration Act. The quest
to align the migration law with constitutional obligations contributed to the adoption of
the Immigration Act. The objectives of the Immigration Act are focused on the
facilitation of legal movement, as well as the prevention of irregular migration into
South Africa. Through the evaluation of the migration law, it is clearly indicated that
the government of South Africa gives preference to migration laws above labour and
social protection laws.75
6.4
RECOMMENDATIONS AND STRATEGIES
6.4.1 Social grants
Social grants are the means by which social assistance is afforded to individuals.76
Initially, the sections regulating social grants in the SAA were not in line with the
provisions of the Constitution.77 This was corrected by the South African courts.78
However, the courts are facing difficulties in balancing the awarding of rights to
individuals and maintaining sufficient resources to finance the social protection
system.79
Another observation with regard to social assistance, specifically focussing on social
grants, is the fact that the grants are categorized. This results in the exclusion of
some members of the community who do not qualify for grants under the SAA.80 It is
argued that this forms an absolute exclusion, and poor adults particularly will have
no protection in accordance with social assistance. Sinclair makes an argument that:
“[f]or the restructuring of the legislative scheme for social assistance to
provide access to social grants for the excluded group and an interpretation of
the content of the right to social assistance that is meaningful and in line with
the founding moral values and transformational demands of the
Constitution.”81
Despite the provisions in the Constitution that determine that any law or conduct
inconsistent with the Constitution is invalid,82 the argument of Sinclair is not
75
Olivier (2012) Part 2 SADC Law J 131.
S 1 of the SAA.
77
See Chapter 3 par 3.2.2. See also Sinclair (2012) Stell LR 200 – 201.
78
See Chapter 3 par 3.2.2. As well as Khosa par 71.
79
Dekker (2010) SA Merc LJ 398.
80
Sinclair (2012) Stell LR 200 –201.
81
Ibid 201.
82
S 2 of the Constitution.
76
123 © University of Pretoria
supported. It is acknowledged that the social protection law, particularly the SAA,
was incoherent with the Constitution. However, the South African courts, specifically
in Khosa, extended social protection to some categories of migrants, thus widening
the scope of the SAA. This inclusion is a step in the right direction regarding the
development of social protection in line with the Constitution. The courts, after
evaluating the facts, financial impact and other relevant factors, made an
economically safe decision.
The idea of extending social assistance to more groups than the categories already
included in the SAA, whether poor adults or other migrant workers, is noble, but the
implications could be vast. An additional financial burden on the state is not
necessarily something to consider.83 However, extending social assistance to
temporary migrants who have been issued a work permit84 in accordance with the
Immigration Act could be reasonable. The migrant work permit holders do make a
contribution to the country’s development, whether financially or with physical labour.
These permits are issued on the condition that the individual does not become a
“public charge”,85 and it is argued that this condition should also be the basis of the
extension of social assistance to this category of migrant workers.
In Khosa86 Mokgoro captures the reason behind these extensions expressly:
“[a] society must seek to ensure that the basic necessities of life are
accessible to all if it is to be a society in which human dignity, freedom and
equality are foundational.” This should be the focus of our society if we intend
to remain a democratic country bounded by diversity and unique in that most
migrants seek out our country as a place of safe haven.”
Consequently, extending social grants to other categories of migrant workers,
excluding permanent residents and temporary migrants with work permits, is not a
recommendation made by this dissertation.
83
See also Nyenti and Mpedi (2012) PELJ 272 discussion on mandatory social insurance and the
burden of these schemes on the state.
84
S 19 of the Immigration Act.
85
S 29 – 30 of the Immigration Act. See also Olivier (2011) Part 1 SADC Law J 137.
86
2004 (6) BCLR 569 (CC) par 52.
124 © University of Pretoria
6.4.2 Law Reform
The South African regulatory framework, in particular the social protection system, is
said to be fragmented.87 The legislation in South Africa is evaluated individually, and
some items will have preference over others. This is clearly indicated where the
government is able to give preference to migration law above social protection and
labour laws.88 Migration law aims to be restrictive, while social protection and labour
laws are generally protective.89 The South African courts have been willing to extend
the scope of some of the instruments through interpretation.90 Without expecting the
legislation to be rewritten, the court simply included certain provisions, which would
be implemented through developing regulations.
In Discovery Health, the court further acknowledged the Immigration Act and held
that conduct inconsistent with the Immigration Act does not make a contract of
employment null and void.91 When dealing with migration laws together with social
protection and/or labour law, an interpretation consistent with the different laws
should be favoured. The courts indicated a willingness to extend social protection in
the sphere of labour security more generously than any of the other strands.92
Labour legislation applicable when dealing with labour security does not exclude
migrants explicitly. Where there were uncertainties regarding the inclusion of migrant
workers, the courts extended the scope of the application of the relevant acts.93
South Africa could move closer to the international and constitutional expectations of
fair treatment for everyone by taking account of developments in the arena of labour
security. Labour security is almost completely regulated by existing legislation and
can be developed to include even irregular migrant workers in as far as it would be
possible.
Most of the South African court cases mentioned throughout this dissertation made
reference to or specifically mentioned international standards and instruments.
87
Olivier (2011) Part 1 SADC Law J 130. See also Olivier (2012) Part 2 SADC Law J 152.
See Chapter 4 par 4.1 and 4.5. See also Olivier (2012) Part 2 SADC Law J 131.
89
Olivier and Govindjee (2013) Paper at the LLRN 7.
90
Discovery Health; “Kylie” and Khosa. See also Chapter 3 of this dissertation.
91
Discovery Health par 3.
92
See the discussion in Chapter 3 par 3.3.3.
93
As stated in Chapter 3 the LRA.
88
125 © University of Pretoria
International and regional organizations make provisions for bilateral and multilateral
agreements, which were discussed earlier.94 These agreements, as stated, do have
positive impacts and provide protection for migrant workers in the countries who are
parties to the agreements. This, however, is not a strategy recommended at this
stage, as these agreements could be of no value if both countries concluding the
agreements do not have similar social protection systems and offer similar protection
through their social protection systems, as shown in by the agreements between
South Africa and Mozambique.
The time may have come for international instruments to regulate the extension of
social protection towards migrant workers, including irregular migrants in as far as
the migrant-receiving country can accommodate these individuals. The Social
Security (Minimum Standards) Convention, 1952 (No 102), developed by the ILO
determines the minimum standards a country’s social security system should adhere
to. The International Convention adopted by the UN is another significant instrument
dedicated the protection of specifically migrant workers. These are only two of the
international instruments applicable to the development of social protection for all.
It is recommended that South Africa could evaluate these conventions and ratify and
implement them in the existing social protection system. The South African social
security system already complies with most of the provisions in the ILO Social
Security (Minimum Standards) Convention, 1952 (No 102).95 South Africa is a
member of the ILO, and this entails that the social protection system in South Africa
is up to standard and echoes the principles that the ILO stands for. This is a
recommendation or strategy to improve and extend social protection in South Africa,
supported by the research in this dissertation and shared by Mpedi and Govindjee.96
The International Convention is a comprehensive instrument with regard to the flow
of migration. It is submitted that the adoption of the International Convention could
lead to an improved South African social protection system. As previously stated,97 it
94
See Chapter 4 and 5.
Strydom et al (2006) 6.
96
Mpedi and Govindjee (2009) Obiter 781 states that “it is therefore recommended that South Africa
ratify and implement the up-to-date social security conventions as a matter of urgency.”
97
See Chapter 4.4.4.1.
95
126 © University of Pretoria
took a number of years before the International Convention was adopted by some
countries, due to the obligations imposed by the International Convention. The
International Convention protects migrants in general and irregular migrants in
particular.98 South Africa has already made significant progress towards extending
social protection to some of the categories of migrant workers, and permanent
residents and refugees are included under the protection of social assistance.
Temporary residents are protected as far as this is in line with the legislation in South
Africa. The courts included irregular migrants in the field of labour security.
South Africa has already made a positive development and goes even further than is
expected of a country that is part of the international sphere. The International
Convention acknowledges a country’s sovereignty, and therefore it could only be a
positive step in the future to ratify the International Convention. Through the
ratification of the International Convention, South Africa could provide social
protection for permanent residents, temporary residents, refugees and asylumseekers in as far as it is financially possible and according to its sovereignty in
regulating migration into South Africa.
The social protection afforded to migrant workers is not explicitly absent and in some
instances provides sufficient protection in some categories. However, implementing
the above recommendations may further develop the social protection system in
South Africa in favour of some categories of migrant workers.
98
See the discussion in Chapter 4.4.4.1.
127 © University of Pretoria
BIBLIOGRAPHY
1. BOOKS, THESIS AND CHAPTERS IN BOOKS
MODE OF CITATION
Becker and Olivier (eds), Access to Social Security for Becker and Olivier (2008)
Non-Citizens and Informal Sector Workers – An
International, South African and German Perspective
(2008) Sun Press
Brand and Heyns (eds), Socio-economic Rights in South Brand and Heynes (2005)
Africa (2005) Pretoria University Law Press
Cholewinski, Guchteneire and Pécoud (eds), Migration Cholewinskiet al (2009)
and Human Rights (2009) University Press, Cambridge
Corder and McLennan (eds), Controlling Public Power Corder
and
McLennan
and
De
(1995) Department of Public Law, University of Cape (1995)
Town
Currie and De Waal, The Bill of Rights Handbook (2005) Currie
JUTA, Cape Town
Waal
(2005)
Dekker, Informal Social Security in South Africa: A Legal Dekker (2005)
Analysis (2005) LLD, University of South Africa
García and Gruat, Social Protection: A Life Cycle García and Gruat (2003)
Continuum Investment for Social Justice, Poverty
Reduction
and
Sustainable
Development
(2003)
International Labour Office Geneva
Harris, Social Security Law in Context (2000) Oxford
Harris (2000)
Mausse and Cunha “Mozambique: Setting Up a Social Mausse
and
Cunha
Protection Floor” in Sharing innovative Experiences: (2011)
Successful Social Protection Floor Experiences (2011)
Special Unit for South-South Cooperation 18
Mpedi and Smit (eds), Access to Social services for Mpedi and Smit (2011)
Non-citizens and the Portability of Social benefits within
the Southern African Development Community (2011)
Sun Press
Olivier et al, Social Security: A Legal Analysis (2003) Olivier et al (2003)
LexisNexis Butterworths, Durban
128 © University of Pretoria
Olivier MP et al, Introduction to Social Security (2004) Olivier et al (2004)
LexisNexis Butterworths, Durban
Rodgers et al, The ILO and the Quest for Social Justice, Rodgers et al (2009)
1919 – 2009 (2009) International Labour Office, ILO,
Geneva
Sachs: The Constitution is Natural Justice Writ Large in Sachs
Corder and Lennan (1995)
in
Corder
and
Lennan (1995)
Sigg&Behrendt, Social Security in the Global Village, Sigg&Behrendt (2002)
(2002) Transaction Publishers, New Brunswick, New
Jersey
Strydom et al, Essential Social Security Law (2006) Strydomet al (2006)
JUTA, Cape Town
Tanner, Social Justice and Equal Treatment for Tanner (2012)
Pregnant Women in the Workplace (2012) LLD,
University of Johannesburg
Van Niekerket al, [email protected](2012) Durban: LexisNexis
2. CONSULTATION
PAPERS,
PAPERS,
Van Niekerket al (2012)
REFORM
REPORTS
AND
CONFERENCES
Committee of Inquiry Into a Comprehensive Social Security System Transforming the
Present – Protecting the Future (Draft Consolidated Report) March 2002
International Labour Conference, Provisional Record Compterendu proviso ire 14A
One hundred and first Session Geneva, 2012
International Labour Organization, Report of the Advisory Group chaired by Michelle
Bachelet Convened by the ILO with the collaboration of the WHO, Social Protection
Floor for a Fair and Inclusive Globalization 2011
International Labour Conference, Social Protection Floors for Social Justice and a
Fair Globalization, 101st Session, 2012 Report IV (1)
International Labour Office Towards a Fair Deal for Migrant Workers in the Global
Economy (2004)
ILO World Labour Report: Income Security and Social Protection in a Changing
World (2000)
Ntseane and Kholisani (2007) Report to the World Bank
129 © University of Pretoria
Olivier and Govindjee “Labour rights and social protection of migrant workers: In
search of a coordinated legal response” Paper presented at the Inaugural conference
of the Labour Law Research Network, Barcelona, Spain, 13
Text of the Recommendation Concerning National Floors of Social Protection,
International Labour Conference, Provisional Record Compterendu proviso ire 14A
One hundred and first Session Geneva, 2012
3. STATISTICAL RELEASES AND TREATIES
South African Treaty Series 1 of 1973
South African Treaty Series 3 of 1973
South African Treaty Series 3 of 1986
Statistical release P0351.4 Documented Immigrants in South Africa (2012)
Statistical release P0302 Mid-year population estimates (2013)
4. JOURNALS
MODE OF CITATION
Böhning “The ILO and the new UN Convention on Böhning (1991) IMR
Migrant Workers: The Past and the Future” (1991) 25/4
International Migration Review 698
Booysen “Social Grants as Safety Net for HIV/AIDS Booysen (2004) JSA HIV
affected Households in South Africa” (2004) Journal of
Social Aspects of HIV/AIDS Research Alliance 1 No. 1
Dekker et al “Social Security: A Conceptual View” (2000) Dekker (2000) Law, Dem
Law, Democracy & Development 4 No.1
&Dev
Dekker “The Social Protection of Non-citizen Migrants in Dekker (2010) SA Merc
South Africa” (2010) SA Mercantile Law Journal 22
LJ
Dupper “Migrant Workers and the Right to Social Dupper (2007) Stell LJ
Security:
An
International
Perspective”
(2007)
Stellenbosch Law Journal 2
Fombat “An Overview of the Constitutional Framework of Fombat (2013) AJICL
the Right to Social Security with Special Reference to
South Africa” (2013) African Journal of International and
Comparative Law 21
130 © University of Pretoria
Kalitanyi and Visser “African Immigrants in South Africa: Kalitanyi
and
Visser
Job Takers or Job Creators?” (2010) South African (2010) SAJEMS
Journal of Economic and Management Sciences NS
13(4)
Kapindu “Social Protection for Malawian Migrants in Kapindu (2001) AHRLJ
Johannesburg:
Access,
Exclusion
and
Survival
Strategies” (2001) African Human Rights Law Journal 11
Mandlate “The Protection and Enforcement of Socio- Mandlate
(2010)
ESR
economic Rights in Lusophone Countries in Africa” Review
(2010) ESR Review 11 No. 3
Mbazira
“Grootboom:
A
Paradigm
of
Individual Mbazira (2011) SAPL
Remedies Versus Reasonable Programmes” (2011)
South African Journal of Public Law 26
Millard “Migration and the Portability of Social Security Millard (2008) AHRLJ
Benefits: The Position of Non-citizens in the Southern
African Development Community” (2008) African Human
Rights Law Journal 8
Modlin “Proposed Labour Amendments – Pipe Dreams Modlin
or
Pipelines
to
Efficiently”
(2011)
(2011)
Professional Professional Accountant
Accountant
Mokgoro “Ubuntu, the Constitution and the Rights of Mokgoro (2010) Stell LJ
Non-citizens” (2010) Stellenbosch Law Journal 2
Mpedi and Govindjee “Social Protection for Workers Mpedi
and
Govindjee
posted to and from South Arica: A Critical Assessment”, (2009) Obiter
(2009) Obiter
Ntseane
and
Solo
“Social
protection
in
SADC: Ntseane
and
Solo
in
Developing an Integrated and Inclusive Framework – Olivier and Kalula (2004)
The Case of Botswana” in Olivier and Kalula (2004) Fiedrih Ebert Stiftung
Fiedrih Ebert Stiftung
Nyenti and Mpedi “The Impact of SADC Social Nyenti and Mpedi (2012)
Protection Instruments on the Setting up of a Minimum PELJ
Social Protection Floor in Southern African Countries”
(2012) Potchefstroom Electronic Law Journal15 no.1
131 © University of Pretoria
Olivier “Enhancing Access to South African Social Olivier
(2011)
Part
1
Part
2
Security Benefits by SADC Citizens: The Need to SADC Law J
Improve Bilateral Arrangements within a Multilateral
Framework” (2011) SADC Law Journal 1 Part 1
Olivier “Enhancing Access to South African Social Olivier
(2012)
Security Benefits by SADC Citizens: The Need to SADC Law J
Improve Bilateral Arrangements within a Multilateral
Framework” (2012) SADC Law Journal 2 Part 2
Olivier and Kalula (eds) “Social Protection in SADC: Olivier and Kalula (2004)
Developing an Integrated and Inclusive Framework” Fiedrih Ebert Stiftung
Fiedrih Ebert Stiftung (2004)
Olivier and Mpedi “Co-ordination and Integration of Olivier and Mpedi (2004)
Social Security in the SADC Region: Developing the JJS
Social
Dimension
of
Economic
Co-operation
and
Integration” Journal for Juridical Science (2004) 28(3)
Richter “The Right to Social Security of People Living Richter (2006) SAJHR
with HIV/AIDS in the Context of Public Sector Provision
of Highly Active Antiretroviral Therapy” (2006) South
African Journal on Human Rights 22
Rijnen “The Current State of the Propose National Rijnen (2010) Medihelp
Health
Insurance
System
(NHI)
and
Future Medical Scheme
Developments, and the Impact thereof on the South
African Community and the Economy in General” (2010)
Medihelp Medical Scheme.
Sebola
“The
Socio-economic
Impact
of
Illegal Sebola (2011) JPA
Immigrants: A Case of Zimbabweans in the City of
Polokwane” (2011) Journal of Public Administration 46
No 3
Sinclair “Poverty: Giving Meaning to the Right to Social Sinclair (2012) Stell LR
Assistance” (2012) Stellenbosch Law Review 2
Smit “Decent Work and the Promotion of Access to Smit (2007) TSAR
Social Protection for Workers in the Informal Economy –
An International and Regional Perspective” (2007)
132 © University of Pretoria
Tydskrif vir die Suid-AfrikaanseReg4
Strode et al “Are There Laws and Policies Protecting Strode et al (2010) Obiter
People Infected and Affected by HIV/AIDS in Southern
Africa? An Update of a Review of the Extent to Which
Countries
Within
the
South
African
Development
Community have Implemented the HIV/AIDS and
Human Rights International Guidelines” (2010) Obiter
Tshoose “The Impact of HIV/AIDS Regarding Informal Tshoose (2010) PELJ
Social Security: Issues and Perspectives from South
African context” (2010) Potchefstroom Electronic Law
Journal 13 No 3
Udombanat
“Social
Rights
Are
Human
Rights: Udombanat
(2006)
Actualizing the Rights to Work and Social Security in CornInt LJ
Africa”(2006) Cornell International Law Journal 39
Van der Elst “Die problematiek en gesamentlike beheer Van der Elst (2011) TGW
van immigrante binne die Europese Unie: Lesse vir
Suid-Afrika” (2011) Tydskrif vir Geesteswetenskappe
Jaargang 51 No. 2
Van Ginneken “Extending Social Security: Policies for Van Ginneken (2003) Int
Developing
Countries”
(2003)
International
Labour Lab Rev
Review 142 No.3
Vonk “Migration, Social Security and the Law: Some Vonk (2002) EJSS
European Dilemmas” (2002) European Journal of Social
Security
Wesson “Grootboom and Beyond: Reassessing the Wesson (2004) SAJHR
Socioeconomic Jurisprudence of the South African
Constitutional Court” (2004) South African Journal on
Human Rights 20
5. STATUTES,
STATUTORY
INSTRUMENTS, MODE OF CITATION
REGULATIONS AND FUNDS
SOUTH AFRICA
Aliens Control Act 96 of 1991
ACA
133 © University of Pretoria
Basic Conditions of Employment Act 75 of 1997
BCEA
Citizenship Act 88 of 1995
Act 88 of 1995
Compensation for Occupational Injuries and Diseases COIDA
Act 85 of 1993
Constitution of the Republic of South Africa, 1996
The Constitution
Employment Equity Act 55 of 1998
EEA
Employment Services Bill, 2010
ESB, 2010
Employment Services Bill 38 of 2012 (as amended)
ESB
Immigration Act 13 of 2002
Immigration Act
Labour Relations Act 66 of 1995
LRA
Medical Schemes Act 131 of 1998
Act 131 of 1998
Mine, Health and Safety Act 29 of 1996
MHSA
Occupational Health and Safety Act 85 of 1993
OHSA
Pension Funds Act 24 of 1956
Act 24 of 1956
Promotion
of
Equality
and
Prevention
of
Unfair PEPUDA
Discrimination Act 4 of 2000
Refugees Act 130 of 1998
Refugees Act
Road Accident Fund Act 56 of 1996
Act 56 of 1996
Social Assistance Act 13 of 2004
SAA
South African Social Security Agency Act 9 of 2004
Act 9 of 2004
Unemployment Insurance Act 63 of 2001
UIA
Unemployment Insurance Contribution Act 4 of 2002
UICA
White Paper on International Migration, 1999
White Paper
White Paper for Social Welfare, 1997
White Paper for Social
Welfare
BOTSWANA
Botswana Constitution of 1966
Programme for Destitute Persons
World Bank Country Report on Botswana
LESOTHO
Constitution of Lesotho, 1993
Free Primary Education programme, 2000
134 © University of Pretoria
National Shelter Policy
MAURITIUS
Deportation Act, 1968
National Pensions Act, 1974
Social Aid Act, 1983
Unemployment Hardship Relief Act, 1983
MOZAMBIQUE
Constitution of the Republic of Mozambique, 2004 Constitution of
(revised)
Mozambique
Labour Law 23 of 2007
National Strategy for Basic Social Security, 2010
Regulation for Basic Social Security, 2009
Social Protection Law 4 of 2007
NAMIBIA
Constitution of the Republic of Namibia, 1990
Namibian Constitution
Labour Act 11 of 2007
National Pensions Act 10 of 1992
Social Security Act 34 of 1994
SAWZILAND
Employment Act 5 of 1980
Swaziland’s Public Health Act 5 of 1969
Civil Servants Referral Scheme, 1995
Phalala Fund, 2001
Public Service Pensions Fund, 1993
Swaziland National Provident Fund, 1974
6. INTERNATIONAL AND REGIONAL CONVENTIONS, STANDARDS AND
RECOMMENDATIONS
INTERNATIONAL LABOUR ORGANIZATION
ILO CONVENTIONS
Abolition of Forced Labour Convention, 1957 (No 105)
135 © University of Pretoria
Convention Relating to the Status of Refugees, 1951 (modified by the 1967 Protocol)
Convention on Termination of Employment at the Initiative of the Employer, 1982
(No 158)
Discrimination (Employment and Occupation) Convention, 1951 (No 100)
Discrimination (Employment and Occupation) Convention, 1958 (No 111)
Employment Promotion and Protection Against Unemployment Convention, 1988
(No 168)
Employment Injury Benefits Convention, 1964 (No 121)
Employment Service Convention, 1948 (No 88)
Equal Remuneration Convention, 1951 (No 100)
Equality of Treatment (Social Security) Convention, 1962 (No 118)
Forced Labour Convention, 1930 (No 29)
Freedom of Association and the Right to Organise Convention, 1948 (No 87)
Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No 128
Labour Clauses (Public Contracts) Convention, 1949 (No 94)
Maintenance of Social Security Rights Convention, 1982 (No 157)
Maternity Protection Convention, 2000 (No 183)
Medical Care and Sickness Benefits Convention, 1969 (No 130)
Migration for Employment Convention, 1949 (Revised) (No 97)
Migrant Workers (Supplementary Provisions) Convention ILO, 1975 (No 143)
Minimum Age Convention, 1973 (No 138)
Minimum Wage Fixing Convention, 1970 (No 131)
Occupational Health Services Convention, 1985 (No 161)
Promotional Framework for Occupational Safety and Health Convention, 2006 (No
187)
Right to Organise and Collective Bargaining Convention, 1949 (No 90)
Social Security (Minimum Standards) Convention,1952 (No 102)
Unemployment Convention, 1919 (No 2)
Worst Forms of Child Labour Convention, 1999 (No 184)
ILO RECOMMENDATIONS
Equal Remuneration Recommendation, 1951 (No 90)
Migrants Workers Recommendations ILO, 1975 (No 151)
Migration for Employment Recommendation (Revised), 1949 (No 86)
136 © University of Pretoria
Recommendation Concerning National Floors of Social Protection, 2012 (No 202)
Recommendation Concerning HIV and AIDS and the World of Work, 2010 (No.
200)International Labour Office, Geneva
ILO STANDARDS
ILO Principles of Social Security (1998)
ILO Standards for the XXI Social Security (2002 ILO Geneva)
LO Social Security for Migrant Workers (1996 ILO Geneva)
UNITED NATIONS
Convention on Migrations in Abusive Conditions and the Promotion of Equality of
Opportunity and Treatment of Migrant Workers, 1974
Convention relating to the Status of Refugees, 1951
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights, 1966
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families 1990
Protocol relating to the Status of Refugees, 1967
Universal Declaration of Human Rights, 1948
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
Charter of Fundamental Social Rights in SADC
Code on Social Security in the Community
Community Social Charter
Draft Protocol on the Facilitation of Movement of Persons in the SADC
South African Development Community Treaty
7. TABLE OF CASES
MODE OF CITATION
SOUTH AFRICA
City of Johannesburg v Rand Properties (Pty) Ltd 2007 1 City of Johannesburg
SA 78 (W); 2006 6 BCLR 728 (W)
(BCLR)
City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 City of Johannesburg
SA 417 (SCA); 2007 6 BCLR 643 (SCA)
(SCA)
Discovery Health Ltd v CCMA 2008 ILJ 1480 (LC)
Discovery Health (ILJ)
Discovery Health Limited v CCMA & others [2008] 7 BLLR Discovery
633 (LC)
(BLLR)
137 © University of Pretoria
Health
Fose v Minister of Safety and Security 1997 7 BCLR 851 Fose
(CC)
Government of the Republic of South Africa other v Grootboom
Grootboom and others 2001 (1) SA 46 (CC)
Hoffman v South African Airways 2000 (2) SA 628 (W)
Hoffman
Khosa v Minister of Social Development; Mahlaule & Khosa
Others v The Minister of Social Development & Others
2004 (6) SA 505 (CC)
Kylie v CCMA2010 (7) BLLR 705 AAH
“Kylie”
Larbi-Odam & Others v MEC for Education (North-West Larbi-Odam
Province) 1998 (1) SA 745 (CC)
Minister of Health and Others v Treatment Action TAC
Campaign and Others 2002 (5) SA 717
Motswagae and Others v Rustenburg Local Munisipality Motswagae
and Another [2013] ZACC 1 (CCT42/12)
Ngalo v The South African Social Security Agency Ngalo
(SASSA) (2740/11) [2013] ZAECMHC 4 (14 February
2013)
Occupiers of 15 Olivia Road v City of Johannesburg 2008 Olivia
5 BCLR 475
S v Makwanyane1995 (3) SA 391 (CC)
Makwanyane
Soobramoney v Minister of Health, Kwazulu-Natal 1998 Soobramoney
(1) SA 756 (CC)
South African National Defence Union v Minister of SANDU
Defence & another 1999 (6) BCLR 615; (1999 (4) SA 469
(CC)
NAMIBIA
African Personnel Services (Pty) Ltd v Government of the African
Republic of Namibia and others (2011) 32 ILJ 205 (Nms)
Personnel
Services
8. WEBSITES
Amendments
to
Regulations
of
the
Social
Assistance
138 © University of Pretoria
Act
available
on
http://www.info.gov.za/view/DownloadFileAction?id=162809 visited on 2013/08/15
Asian
Development
Bank
“Social
Protection:
Reducing
Risks,
Increasing
Opportunities” available on http://www.adb.org/SocialProtection/default.asp, visited
on 2012/06/04
Countries
in
the
African
continent
available
on
http://www.worldatlas.com/cntycont.htm visited on 2013/04/09
Decent Work Agenda available on http://www.ilo.org/global/about-the-ilo/missionand-objectives/lang--en/index.htm,
visited
on
2012/10/23.
Available
on
http://www.ilo.org/global/about-the-ilo/decent-work-agenda/social-protection/lang-en/index.htm visited on 2012/06/19
Helton People movement: The need for world migration organization (2003)
available on http://www.cfr.org/publication/5950/people_movement.html visited on
2013/06/10
ILO
standards
available
on
http://www.ilo.org/global/about-the-ilo/decent-work-
agenda/social-protection/lang--en/index.htm visited on 2012/06/19
International
Labour
Conference
available
http://www.ilo.org/public/english/support/lib/century/index6.htm,
2013/03/15
and
visited
on
on
http://www.ilo.org/global/about-the-ilo/decent-work-agenda/lang--
en/index.htm, visited on 2013/03/12
Labour Law 23 of 2007. Translated and available at www.arbitrationmz.com visited
on 2013/11/30.
Migration
and
Health
in
SADC:
a
review
of
the
literature
available
onhttp://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ve
d=0CC4QFjAA&url=http%3A%2F%2Ffreedommedia.co.za%2Fiom%2F%3Fwpdmac
t%3Dprocess%26did%3DNTUuaG90bGluaw%3D%3D&ei=b9AyUuLXMsKohAevtoH
139 © University of Pretoria
IDQ&usg=AFQjCNG4iEEkGgNDv9qkPGy74Tl7UPb19g visited on 2013/08/13
National
Health
Insurance
Scheme
available
onhttp://www.medihelp.co.za/Libraries/2012_Upload_Annual_report_of_2011/A0686
7_Medihelp_English_Annual_Report.sflb.ashxvisited on 2012/06/25
New
Labour
Bills
Changes
in
the
Offing.
Available
www.mylexisnexis.co.za.innopac.up.ac.za/nxt/gateway.dll/bc/k
at
http://0-
visited
on
available
at
2013/11/30.
Preamble
of
the
Constitution
of
the
http://www.ilo.org/public/english/bureau/leg/download/
ILO
constitution.pdf
visited
on
2012/12/20
President
Thabo
Mbeki
in
ANC
Today,
May
2001
available
on
http://www.queensu.ca/samp/sampresources/samppublications/policyseries/Acrobat
22.pdf visited on 2013/08/02
Reports were tabled by Roberts during the International Research Conference on
Social Security held at Helsinki on 25-27 September 2000 under the theme “Social
Security in the Global Village”. Available at https://dspace.lboro.ac.uk/dspacejspui/bitstream/2134/2677/2/2roberts.pdf visited on 2013/06/11
SADC
Draft
Protocol
available
at
http://www.unisa.ac.za/contents/faculties/law/docs/DRAFT.pdf visited on 2013/06/26
Statistics
South
Africa
available
on
http://www.statssa.gov.za/publications/findpublication.asp visited on 2013/08/14
Van den Heever “Evaluation of the Green Paper on national Health Insurance”
available on http://www.hsf.org.za/projects/health-reform/national-health-insuranceproject-developments/nhi-useful-resources/responses-to-national-health-insurancegreen-paper visited on 2012/06/25
140 © University of Pretoria
William and Carr (2006) Southern African Migration Project, The Draft Protocol on
the Facilitation of Movement of Persons in SADC: Implications for State Parties,
Migration
Policy
Brief
No.
18
6.
Available
at
http://dspace.cigilibrary.org/jspui/bitstream/123456789/30699/1/Migration%20Policy
%20Brief%20No.%2018.pdf?1 visited on 2013/06/26
White
Paper
on
International
Migrationavailable
http://www.info.gov.za/whitepapers/1999/migrate.htm visited on 2013/07/23
141 © University of Pretoria
on
Was this manual useful for you? yes no
Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Download PDF

advertisement