On Thursday 27 February 2020, a workshop on “Migration, the Right to Work and Evidence” was held in Mowbray, Cape Town. The workshop was co-hosted by the African Centre for Cities, the London School of Economics and Political Science, and the Socio-Economic Rights Institute (SERI).
Although South Africa’s approach to incorporating immigrants within the fabric of urban life has been lauded as progressive, there have been periodic outbursts of violence against immigrants since 1994, particularly against those working in the informal economy. This is despite substantial evidence of the contributions made by immigrants to employment generation and the economy. The purpose of the workshop was to bring together in conversation migrants, activists, lawyers and academics who are working on migration issues and to strengthen networks. The workshop was attended by 27 participants.
The workshop consisted of three sessions. In the first session, immigrant workers shared their experiences of making a living in South Africa. First, Sylvia Lum, an entrepreneur from Cameroon, detailed the obstacles she faced as an immigrant woman trying to register a business in Cape Town. Abdikadir Mohammed, a member of the Somali Association of South Africa, then shared the challenges the Somali community in South Africa experience and described xenophobic violence against Somali business owners as the biggest challenge. Lastly, Maggie Mthombeni of Izwi Domestic Workers Alliance, told stories of immigrant domestic workers and their experiences at the hands of employers who deliberately used their workers’ precarious status to exploit them.
The second session was titled, “Migrants’ right to work” and began with Sally Gandar from Scalabrini Centre speaking about the recently amended Refugee Act, new regulations introduced in January 2020 and how they affect migrants’ right to work. Sharon Ekambaram, from Lawyers for Human Rights, followed and spoke about the organisations’ efforts to build solidarity between South Africans and immigrants at the community level. Timothy Fish Hodgson of the International Commission of Jurists then ended the session with a presentation on migrants’ right to work in South Africa in terms of international human rights law.
In the third session titled, “Deploying evidence to secure the right to work”, Tanya Zack from University of the Witwatersrand and Suzanne Hall from London School of Economics, both shared their research on immigrants and informal work in Johannesburg and the UK respectively and shared lessons learned on deploying evidence to help secure immigrants’ right to work. All three sessions were followed by lively group discussions.
In 2018 SERI and South African Local Government Association (SALGA) developed two publications that dispel persistent myths associated with informal trade in South Africa and clarify, often misunderstood, legal and constitutional obligation of local government in relation to informal trade. In “Informal Trade in South Africa: Legislation, Case Law and Recommendations for Local Government” the widely held myth that refugees and asylum seekers do not have the right to work in South Africa is discussed in one of the chapters. The Supreme Court of Appeal dispelled this myth in Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism, by stating that the constitutional right to human dignity requires that refugees and asylum seekers should be able to earn an income, irrespective of whether such employment is “wage-earning employment” or “self-employment” as in the case of informal trade.
Download the publications:
On 21 February 2020, the Mail & Guardian published an op-ed by SERI researcher Thato Masiangoako. The op-ed discusses the significance of the Constitutional Court hearing for Economic Freedom Fighters & Another v Minister of Justice and Constitutional Development & Another held on 18 February 2020 in which SERI has intervened as amicus curiae. The case deals with the constitutionality of section 18(2)(b) of the Riotous Assemblies Act and section 1 (1) of the Trespass Act.
The op-ed discusses the disjuncture between the law and reality when these pieces of legislation are applied and argues for the need for South Africa's laws to be brought in line with its current reality and most importantly, in line with its Constitutional framework. The op-ed discusses some of SERI’s concerns with the two apartheid-era pieces of legislation with examples drawn from the case of Ms Zwane and what many of SERI's clients experience.
Masiangoako argues that "the co-existence of the Trespass Act and the PIE Act presents a clear example of how historical disparities cut through legislation in conflict with efforts to address these very disparities."
Read the full op-ed here.
On Wednesday, 5 February 2020, the New Frame published an article by Nomfundo Xolo discussing Abahlali baseMjondolo (AbM)’s response to the draft Amendment Bill.
The Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution granted an extension to comments on the draft Constitution Eighteenth Amendment Bill which will amend the Constitution to allow for expropriation without compensation.
In April 2018, SERI made a submission to the Joint Committee on Constitutional Review which had been tasked by Parliament to review section 25 of the Constitution, specifically focusing on the issue of expropriation without compensation. SERI’s submission considered expropriation as a policy tool for the implementation of land reform and highlighted the potential it has to assist the state in unlocking speculatively held or abandoned land. It further argued that expropriation can enable the state to acquire vacant land and buildings which could then be used for the provision of permanent housing. Expropriation could help secure the tenure of millions of South Africans where they currently live. By expropriating the land on which informal settlements sit or a building that accommodates poor people, the state can ensure that poor people are not evicted, have access to a basic level of services and have access to secure housing until a more permanent solution can be found.
The article quotes AbM’s S’bu Zikode who notes that “a fair process in the expropriation of land would be one that leads to communal ownership, and one that especially recognises black women’s underprivileged position with a view to giving them the opportunity to access and own land.” Zikode also notes that “(t)he bill in its current form is misleading the public. It has already cast aside poor black people. It needs to be stated fairly that land in fact does belong to all of us and not the elite. It is vague on fair land distribution, a clear indication that land will still be a privilege to those who have money.”
South Africa ratified the United Nations Covenant on Economic, Social and Cultural Rights (ICESCR), two decades after it was signed by former President Nelson Mandela. In terms of the Convention, South Africa presented its report on progress made in making rights a reality to the United Nations Committee on Economic, Social and Cultural Rights. The Committee is the body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its state parties. The Committee took into consideration the initial report of South Africa, the reports of the South African Human Rights Commission and civil society organisations on the implementation of the ICESCR in October 2018.
The Committee made a series of Concluding Observations setting out how South Africa can improve its record in fulfilling socio-economic rights. The South African government is required in terms of its Covenant obligations to report back on its progress on the implementation of specified recommendations by October 2020 and provide another full report to the Committee by 31 October 2023.