The Legal Framework: Migrants’ Status and Employment Conditions
The South African constitution is the supreme law of the country47—any law or conduct
inconsistent with it is invalid. The legislature, the executive, the judiciary and every
organ of the state are all bound to respect, protect, promote, and fulfill the rights
contained in the constitution.48 The constitution guarantees most fundamental rights to
all individuals, whether they are citizens or non-citizens. Rights associated with voting,
political party formation, standing for public office, obtaining a passport, entry into the
country, freely choosing a trade, occupation or profession, and benefiting from state
measures to foster conditions which enable access to land, are expressly limited to South
African citizens.49 According to South Africa’s Constitutional Court, when the
constitution intends to confine rights to citizens, it says so.50 The constitution states that
“[the] Bill of Rights is the cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and affirms the democratic values of human dignity,
equality and freedom.”51
The Bill of Rights entrenches the rights of everyone in South Africa, inter alia, to
equality before the law, human dignity, personal freedom and security, privacy, and due
process of law.52 For example, everyone, including a non-citizen, who is arrested for
allegedly committing an offense has the right to be brought before a court within 48
hours after the arrest, and everyone who is detained has the right, inter alia, to challenge
the lawfulness of the detention before a court, and to have conditions of detention that
are consistent with human dignity.53 Similarly, under international law some civil and
political rights must be provided on an equal basis to nationals and migrants, either
because the right is absolute or because selective denial could not be justified by the
government as reasonable or proportionate. Economic and social rights for migrants,
however, present a greater challenge in domestic and international law as these rights are
not absolute. Fair labor practices for all workers do not present the same challenge in
international law: equality of employment conditions for those in the work force,
47
The Constitution of the Republic of South Africa (No. 108 of 1996), chapter 1, section 2,
http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1 (accessed July 9, 2006).
48
Ibid., chapter 2, section 8(1).
49
Ibid., chapter 2, sections 19, 21(3), 21(4), 22, 25(5). Section 37(6) and 37(7), relating to rights of detainees in
a state of emergency, do not apply to persons who are not South African citizens.
50
Constitutional Court of South Africa. Lawyers for Human Rights v Minister of Home Affairs, Case CCT 18/03,
para. 27.
51
The Constitution of the Republic of South Africa, chapter 2, section 7(1).
52
Ibid., chapter 2, sections 9, 10, 12, 14, 23, 26, 27, 33, and 34 respectively .
53
Ibid., chapter 2, section 35.
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HUMAN RIGHTS WATCH VOLUME 18, NO. 6(A)
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