Africans and other foreign nationals in South Africa have faced intense scrutiny from the South African government this past week.
Africans and other foreign nationals in South Africa have faced intense scrutiny from the South African government this past week. On Wednesday, 25 foreign nationals in the African nation were arrested on the grounds of failing to comply with the Immigration and Labor Acts. According to South African authorities, the Cape Town crackdown will be the first of many government-led efforts to prevent illegal immigrants from breaking the law. The effort led by the Department of Labor and the police marks the first significant official effort to comply with immigration and labor laws for South Africa officials since the 2015/16 talks on the same.
What does the law say?
On Wednesday, police searched restaurants and other places of business in Cape Town, searching for businesses that illegally employed foreign nationals.
According to South African law, anyone born outside of South Africa falls under the foreign national category. While the government does not have a mandate to actively search for undocumented immigrants, it is allowed to look for employed, undocumented persons. Section 38(1) of the country’s Immigration Act stipulates that business owners cannot employ foreigners who are in the country illegally. Failure to comply with this law could open businesses to federal prosecution. This was the case on Wednesday when one manager was also arrested in connection with the employment of the 25 illegal foreign nationals.
In South Africa, employing paperless residents could also go against the LRA. Labor laws in the country state that ‘everyone’ has the right to fair labor practice. While Section 23 of the Constitution does not specify which groups fall under the provision, it ensures that employing illegal foreigners could potentially break labor laws.
Labor Law vs. Immigration Law
A 2017 report released by the University of Witwatersrand’s African Centre for Migration & Society (ACMS) shows that many of the illegal migrants employed in the Southern African region are more likely to be mistreated that their South African-born counterparts. The report, which summarized research conducted by the Johannesburg-based higher education institution between 2012 and 2014, established that many of the employed undocumented foreigners are hired to do menial tasks.
Furthermore, the report found that these illegal residents were more likely to be underpaid and discriminated against in the workplace compared to employees who were South African by birth. In fact, the number of foreigners working in the informal sector is twice the number of South Africans working in the same area.
Over the past few years, South Africa has been a hub for xenophobic violence. Between 2015 and 2017, there were numerous incidences of South African nationals targeting people because of their national origin. Many foreign residents living in the country at the time were either killed or maimed because of their foreign status. The World Report 2018 also highlighted an incident that occurred in February 2016 where a group calling itself “The Mamelodi Concerned Residents” instigated protests that resulted in the destruction of shops owned by non-South African residents.
One of the main talking points for these groups targeting foreign nationals has been that immigrants have been “stealing” the locals’ jobs. The 2017 ACMS report only confirms that there are more foreigners than locals employed in sectors like hospitality, tourism, retail, and construction among other sectors. What the report does not address is the working conditions of foreign employees and how they relate to the labor laws in the country.
According to South Africa’s Immigration Act, 60% of positions in any workforce should go to South African nationals. However, more jobs in the informal sector go to foreign nationals because of several factors. According to the government, this is because businesspeople can obtain cheaper labor hiring foreigners, especially undocumented ones. “Employers were undermining immigration and labor laws as they paid workers starvation wages,” Home Affairs Minister Malusi Gigaba remarked after the crackdown on Wednesday. Mr Gigaba affirmed that the government would be putting more effort into ensuring employers comply with these laws.
Business owners in South Africa do not agree with the government’s assessment. On the contrary, some of them remarked that it is better to hire foreigners without papers because they are more responsible than their local counterparts. One entrepreneur told the local news outlet IOL, “I have hired locals but they disappear for days and when we fire them, the officials tell us we are wrong. The foreign nationals have [been] shown to be more reliable.”
Whether employers hire undocumented foreigners because of cheap labor or reliability does not matter under SA law. No matter the reason, it remains illegal to hire foreign nationals without legal papers. However, that does mean that employers have the right to treat such employees as they see fit. Labor law protection also covers foreign nationals.
In 2017, an illegal migrant named Lanzetta sued his South African employers for wrongful termination. Mr Lanzetta argued that Discovery Health, his employer, failed to give him the necessary documents to renew his work permit. As a result, his legal alien status elapsed and the company got the grounds to fire him under Immigration Law. While the court did not rule in Mr Lanzetta’s favor, it highlighted the LRA’s mandate that employers treat all their employees fairly.
As South African officials continue the pursuit of illegally employed migrants, it remains unclear how the balance between the nation’s immigration and labor laws will affect the charging and deportation of foreign nationals. On the one hand, officials are ensuring compliance by rooting out illegal employees. On the other, they are violating the labor rights of foreign employees by discriminating against them. Employment of undocumented foreigners is illegal, but sometimes it is the only option open to them.
In the midst of Wednesday’s crackdown, activists highlighted a challenge that makes compliance more difficult for foreigners. Mr Lanzetta alleged that his undocumented status stemmed from his employer’s failure to assist him in the process. In most cases, foreigners may not have the time or money to renew their papers at the ill-staffed Refugee Reception Offices. “Operations deliberately cracking down on undocumented migrants, particularly in a city where there is no Refugee Reception Office (RRO) available to provide new asylum seekers with documentation, is excessive and deeply unfair,” advocacy specialist Marike Keller told IOL on Thursday. Keller is a Sonke Gender Justice Policy Development specialist.