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Recommendations

To the Government of South Africa

  • The Department of Home Affairs, the South African Police Service, and the Department of Defense should ensure that the correct procedures for arrest, detention, and deportation as set out in the immigration law are consistently followed by state officials. Measures should include improved training of officials in the law and legal procedures; the introduction of a system for undocumented migrants to report on officials who engage in unlawful practices; more rigorous investigation; and prosecution and disciplining of those officials who are found to have committed violations of the laws. In particular:
    • The Department of Home Affairs, the South African Police Service, and the Department of Defense should investigate allegations that officials participating in arrests and deportations have been involved in assaults on foreign nationals, and all incidents in which deportees have allegedly been forced to jump from moving trains, and initiate prosecutions where possible. 
    • The Department of Home Affairs and the South African Police Service should ensure that the practice of detaining minors with adults in violation of constitutional and international legal provisions ceases.
    • The Department of Home Affairs and the South African Police Service should improve their internal monitoring of abuses by officials, and include in their annual reports information on the results of their internal monitoring procedures, including how many officials they discipline for abuses relating to foreign migrants, the nature of the abuses, and the kind of disciplinary measures imposed.
  • The Department of Home Affairs should formalize and publicize its immigration policy to permit undocumented workers access to their unpaid wages, savings, and personal belongings in the event that they are deported.
  • The Department of Home Affairs should amend the immigration law to make it an offense for state officials not to give receipts when they take documents and other items from suspected “illegal foreigners.”
  • The Department of Home Affairs should develop policy regarding the use of independent oversight mechanisms in immigration detention facilities such as the Judicial Inspectorate of Prisons.
  • The Department of Home Affairs should ensure that the detention and deportation procedures at the proposed new immigration detention facility near Musina in Limpopo province developed by the South African Police Service comply with the provisions of Section 34 of the Immigration Act.
  • The Minister of Home Affairs should develop the terms and conditions for granting permanent residence status as contemplated by section 31(2)(b) of the Immigration Act for migrants or categories of migrants, including asylum seekers and refugees, for whom special circumstances exist, as in the case of former Mozambican refugees who have failed to obtain permanent residence status during the previous regularization program.
  • The Department of Social Development should collaborate with the Department of Home Affairs and the South African Police Service in ensuring that the practice of detaining minors with adults ceases.
  • The Department of Labour should ensure that all workers in an employment relationship, whether documented or undocumented, benefit from the provisions relating to conditions of employment as set out in South African employment law, and that these provisions are consistently enforced.
  • The Department of Labour should consider introducing a cheaper corporate permit for farmers with small labor forces to offset the current high cost of corporate permits for farmers who only hire small numbers of workers and to encourage the documentation of small workforces. 
  • The Department of Labour should review, in consultation with farmers, the housing provisions in the Sectoral Determination for the Farm Worker Sector to ensure that this legal provision is not creating a disincentive for farmers to provide housing for farm workers, and if it is, to develop and put in place a remedy.
  • The Department of Labour should fill all vacancies for labor inspectors and require labor inspectors to produce public reports with statistics on the numbers of farms they visited, employers and employees whom they interviewed about conditions of employment, violations identified, and employers’ compliance and follow-up actions in cases of employers’ non-compliance. 
  • The Department of Labour should create incentives for nongovernmental organizations to assist with independent monitoring of labor laws.
  • The Department of Labour should develop a mass public information campaign to educate farm workers and employers about farm workers’ rights and the penalties for committing abuse.  The information should be disseminated in the languages spoken by farm workers and farmers. 
  • The Department of Labour should ensure that the right of workers (whether documented or undocumented) injured on duty to receive workers’ compensation is enforced, including by imposing penalties on employers who fail to report work-related accidents or violate other aspects of the workers’ compensation law. 
  • The Department of Labour should create and publicize accessible complaints mechanisms for farm workers to report problems such as violence, unpaid wages, or poor working conditions, including hotlines, support for nongovernmental organizations that assist farm workers, and helpdesks at locations frequented by farm workers.
  • The government of South Africa should ratify the International Covenant on Economic, Social and Cultural Rights signed in 1994.
  • The government of South African should sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and amend domestic laws accordingly. 

To the Parliament of South Africa 

  • Members of Parliament and the Parliamentary Portfolio Committee on Labour should pressure the executive to enforce legal protections for foreign migrants.
  • Members of Parliament and the Parliamentary Portfolio Committees should ensure that they adequately oversee the functioning of the line ministries that have responsibilities for foreign migrants and farm workers, both foreign and South African.  The Portfolio Committee on Labour should ensure that labor inspectors are regularly inspecting farms and issuing the appropriate documents and citations.  The Safety and Security Portfolio Committee and the Home Affairs Portfolio Committee should ensure that arrest, detention, and deportation processes comply with the law.  
  • Members of Parliament and the Parliamentary Portfolio Committee on Labour should urge the executive to introduce an amendment to the immigration law to enable foreign workers to collect their unpaid wages, possessions, and savings prior to deportation, and propose legislation to encourage the provision of housing for farm workers.
  • Members of Parliament should urge the executive to sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and to ratify the International Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which  provides for the establishment of independent monitoring bodies with a mandate to visit all places of detention.


To Trade Unions

  • Trade unions representing farm workers should establish a presence or increase their visibility in rural areas, expand their efforts to educate all farm workers—including foreign migrants—on their rights, and promote all farm workers’ interests.
  • The Congress of South African Trade Unions should lobby the government to sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and to ratify the International Covenant on Economic, Social and Cultural Rights.

To Civil Society

  • Civil society should extend its legal services and monitoring to rural areas and work for the protection of all foreign migrants, including farm workers, regardless of nationality.

To Farmer Associations

  • Farmer associations should monitor their members to ensure compliance with labor and immigration law.

To Independent Bodies

  • The Human Rights Commission and the Commission for Gender Equality should regularly monitor and report on human rights abuses in the farm sector.
  • The Legal Aid Board should play a more active role in providing legal services to all farm workers, including foreign migrants.

To the Governments of Zimbabwe and Mozambique

  • The embassies/high commissions and foreign ministries of Zimbabwe and Mozambique should prioritize increased protections for migrant workers in South Africa through bilateral diplomacy and increased cooperation with other labor-sending countries.  They should conduct information campaigns on workers’ rights; create services for workers reporting abuse, including access to legal aid; and track and make publicly available data on the number of migrant workers and reported cases of abuse. 

To International Donors

  • International donors should provide funding for services for deportees or migrants who are abused in South Africa, support civil society groups in South Africa that promote, monitor, and seek to protect the rights of foreign migrants, and support governmental or civil society public information campaigns on the rights of foreign migrants in South Africa.

To International Organizations

  • The International Organization for Migration should urge the governments of Zimbabwe and South Africa to facilitate legal migration by removing current obstacles to Zimbabweans obtaining passports and visas to visit South Africa.
  • The UNHCR should collaborate with the International Organization for Migration in Beitbridge to ensure that those who have sought asylum in South Africa are provided protection and the opportunity to return to South Africa.


February 2007

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