Human Rights Watch had an opportunity to visit the center in October 2006. We were impressed by the assistance that the IOM is providing to deportees and by its efforts to protect the rights of deportees, as we describe below. However, we note that a significant percentage of Zimbabweans reject any IOM assistance, as IOM statistics provided below indicate, and prefer to return immediately to South Africa, as IOM staff themselves acknowledged in interviews with us.75 Zimbabweans will continue to participate in irregular migration for at least two reasons. Firstly, they are unable to obtain employment at home. Secondly, they are unable to obtain passports because the government of Zimbabwe has stopped issuing them and the stringent financial requirements to obtain a visa are beyond the means of the vast majority of Zimbabwean migrants, as discussed above. The IOM should use its working relationship with the Zimbabwe government to pressure it to facilitate "regular" or legal migration by making it possible for Zimbabweans to obtain passports and visas expeditiously and inexpensively.
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There is considerable overlap between the economic rights contained in the ICESCR and the economic rights provided for in the Constitution of the Republic of South Africa, which is particularly relevant in light of the imperative that international law inform the scope of the constitutional provisions. Article 7 of the ICESCR, which recognizes "the right of everyone to the enjoyment of just and favourable conditions of work," is reflected in the constitution's guarantee of fair labor practices (section 23). Article 7 explicitly states that such conditions must ensure "(a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind...; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted...; [and] (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."116 The ICESCR also requires that working mothers during a reasonable period before or after childbirth should be accorded paid leave or leave with adequate social security benefits.117 Article 7 of the ICESCR also recognizes the right of everyone to social security, including social insurance118 and adequate housing,119 and in these respects is akin to section 27 of the Constitution of South Africa.
The Aliens Control Act, 1991, amended in 1996, encouraged and governed permanent immigration for Europeans. African migrants from the Southern Africa region seeking legal access to South Africa were subjected to a dual system of control known as the "two gates policy." The normal immigration rules and regulations for Europeans in the Aliens Control Act of 1991 provided one "gate"; specific exemptions from the act for non-South African workers in the case of bilateral government conventions or temporary employment schemes provided a second "gate." The act did not prescribe or regulate such schemes. It merely gave discretion to the minister of home affairs to exempt particular employers and "special recruitment schemes." These exemptions were designed for the mining industry and white commercial farmers, and allowed them the right to employ non-South Africans under separate terms and conditions than those prescribed by the act.129 The Aliens Control Act was replaced by the Immigration Act, 2002, which became effective in 2003.
The Immigration Act, 2002 (No. 13 of 2002) and the Immigration Amendment Act, 2004 (No. 19 of 2004) empower the minister of home affairs to delegate, subject to the conditions that s/he may deem necessary, his powers (with a few specified exceptions) in terms of the act to other officers or employees in the Public Service.133 The Department of Home Affairs, owing to a shortage of personnel, has delegated powers to the SAPS to conduct searches, arrests, and deportations, and sometimes to the South African National Defence Force (SANDF) to make arrests.134
An immigration official requires a warrant to enter a private dwelling to search or make inquiries.151 Farms are ordinarily treated as private dwellings. In early 2002 the minister of safety and security and Agri South Africa (Agri SA), the largest national farmers' organization, negotiated an agreement that requires officials in health, labor, agriculture, home affairs, the police, and defense force to give advance notice to farmers before they visit. Only within 10 kilometers from borders may immigration officials, police, and soldiers visit farms unannounced. Farmers negotiated this agreement on the grounds that people posing as government officials were attacking farm owners.152 According to police and immigration officials, the agreement handicaps them should they wish to visit a farm to investigate whether the farmer is hiring "illegal foreigners." Warned of a pending visit by government officials, a farmer hiring undocumented workers will make sure they are nowhere to be seen when the officials visit.153
Human Rights Watch interviewed a young Zimbabwean man at the IOM reception center in Beitbridge who had been deported after living and working illegally in South Africa for eight months. He contends that police threatened him with violence, stole from him, and sought to extort money from him on different occasions. When he first came to South Africa, he and a friend from home set up a barber shop on the streets of Johannesburg. "The municipal police took all our machines. It was on a Sunday. It was a very busy day. They said we could get the machines back if we came and paid R820 [US$117.65]."
Our problem is no money after being arrested. I left more than R1,250 [US$179.34] in Pretoria. If I die in Zimbabwe, who is going to take this money? I'm working for nothing. And South African policemen come and arrest us at our jobs, not on the road or in a tavern. The citizens of South Africa tell them to arrest us at our job. Now we are working for nothing. It's better if they arrested us and took us home to get our money. When I asked if they could take us with our white employer [name supplied], a building contractor, to get our money at home, then the police [three of them] beat me and put me in tight handcuffs.252
An employer is required by law to give a meal interval of at least one continuous hour to a farm worker who works continuously for more than five hours. The one-hour meal interval may be reduced to 30 minutes by mutual agreement.260 Meal intervals (as opposed to tea breaks) do not form part of ordinary working hours.261
A Zimbabwean permanent worker on another farm in Weipe, who did get paid the minimum wage, claimed that only 20 of the approximately 75 permanent workers were being paid the minimum (although Human Rights Watch did not interview any permanent worker at this farm who was not receiving minimum wage). He and other Zimbabweans on the farm who earned the minimum wage expressed concern about the seasonal workers who were only earning R500 (US$71.74), despite working the same number of hours: "I know it because we are friends. We show each other the pay slips. Some of the seasonals have been here before me and they are getting that money [less than the minimum]."267 Seasonals were being paid by a piece rate arrangement, as he explained, and it obviously did not guarantee them a minimum wage. "Some people are working for kgs [kilograms]. If you make so many boxes of spanspek and watermelons you can go beyond the minimum. Some are working all day. He's paying them R500 [US$71.74]. He's not showing these [to the labor inspectors]."268
A 34-year-old Mozambican woman with a South African identity document works in a banana packing house on a large commercial farm in Marloth Park. She gets paid the minimum wage, R885 (US$126.97) per month, but they work Monday to Friday, 6 a.m. to 5 p.m., or over 10 hours per day (excluding a 45-minute lunch break); on Saturdays they work until 12:30 p.m.302 They are therefore working overtime for at least two hours per day during the week without pay. Because they have already worked more than 45 ordinary hours between Monday and Friday, they should be paid overtime for work on Saturdays. Instead, they are working on Saturday for no pay. Worse, another Mozambican worker from the same farm said, "We don't clock money for Saturday but if you do not work on a Saturday he deducts money for the other days of the week."303 Documented Mozambican and South African workers we spoke to when we visited a farm on the Komatipoort-Mananga road also said they did not get paid for working on Saturdays, and if they refused to work on Saturdays the farmer threatened to deduct their Friday pay.304
On a neighboring farm that grew bananas, vegetables, and citrus, the employer deducted R90 (US$12.91) for accommodation from each of his (documented) Mozambican and South African workers' wages of R880 (US$126.26) per month even though the accommodation did not meet the prescribed minimum standard. Even those living in shacks had deductions from their wages. Workers said the roofs leaked when it rained, the toilets were so far away from the house that the workers used the banana plantations instead, and the water was not safe to use. A Mozambican who had been working on the farm for 16 years as a mechanic and driver complained about the quality of the water: "We have a borehole. We have a pipe which is used for sewerage on the farm. When we use it, the water gets mixed up with the sewerage. But we still drink that water. If you open the tap, that rubbish will come first." The employer also deducted from the wages of both husbands and wives for accommodation.320 A driver who was visiting the compound from a nearby sugarcane farm said that his employer deducted R100 (US$14.35) from his R2,500 (US$358.68) monthly earnings (he worked 12 hours per day) for his housing. Though he had electricity, he did not have water or a toilet and had a roof that leaked when it rained.321 2ff7e9595c
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