Conclusion
Documented and undocumented migrants from Zimbabwe are vulnerable to human
rights abuses in South Africa and occupy an ambiguous space in the law with respect to
certain rights guarantees. Their constitutional rights to personal freedom and security,
conditions of detention which are consistent with human dignity, and fair labor practices
are infringed upon by violations of immigration and employment laws and also
deficiencies in these laws. Their inability to access adequate housing presents
challenging issues of unsettled law, which will require further adjudication.
In the public sector, the police and immigration officials violate the lawful procedures
for the arrest, detention, and deportation of foreign migrants in the Immigration Act. In
the private sector, employers violate the prescribed basic conditions of employment for
farm workers, including by not paying the minimum wage, making unlawful deductions
from workers’ wages, and calculating workers’ wages based on productivity rather than
the number of hours worked. Employers in the cities pay discriminatory wages to
undocumented foreign migrants who do the same work as South African citizens. South
African workers and private security officials discriminate and use violence against
foreign workers, documented and undocumented. With respect to the right to social
security, foreign migrants suffer de facto exclusion from workers’ compensation.
Existing legislation discourages farmers from investing in farm workers’ housing and the
government has no housing policy for farm workers, whether South African or foreign.
To address the human rights abuses of Zimbabwean foreign migrants, Human Rights
Watch recommends that the government of South Africa enforce compliance with its
immigration and employment laws, and amend the laws where necessary. Measures such
as creating a hotline for foreign migrants to report human rights abuses by employers
may complement the introduction of incentives for nongovernmental organizations to
assist in monitoring and reporting on labor law violations by employers. Legal
impediments to foreign migrants’ receiving workers’ compensation should be removed
by legislative amendments. The government should acknowledge the legal disincentives
for employers to provide housing for farm workers—both foreign migrants and
nationals—and should devise a housing policy that will enable it to meet its
constitutional obligations to progressively realize the provision of adequate housing for
everyone within the understanding of the Constitutional Court. Finally, the government
should address the specific situation of undocumented Zimbabwean migrants in South
Africa through comprehensive rather than ad hoc measures that address their lack of
status.
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HUMAN RIGHTS WATCH VOLUME 18, NO. 6(A)
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