REPUBLIC OF SOUTH AFRICA
TREATY SERIES
No.10/1967
Agreement between the Governments of the Republic of South Africa and Malawi relating to the employment and documentation of Malawi nationals in South Africa
Place and date of signing: Pretoria and Blantyre, 1 August 1967
Date of entry in force: 1 August 1967
THE GOVERNMENT PRINTER, PRETORIA
REPUBLIC OF SOUTH AFRICA
DEPARTMENT OF FOREIGN AFFAIRS
The Department of Foreign Affairs of the Republic of South Africa presents its compliments to the Ministry of External Affairs of the Republic of Malawi and, with reference to the proposed conclusion of an agreement between the Government of the Republic of South Africa and the Government of the Republic of Malawi relating to the employment and documentation of Malawi nationals in South Africa, has the honour to state that it is the understanding of the South African Government that the agreement shall provide as follows:
"Agreement between the Governments of Malawi and South Africa relating to the Employment and Documentation of Malawi Nationals in South Africa
PREAMBLE
Whereas the Government of the Republic of Malawi and the Government of the Republic of South Africa have taken note of the fact that there is in the Republic of South Africa a large number of persons of Malawi origin who are employed on mines affiliated to the Transvaal and Orange Free State Chamber of Mines or on other mines or in other employment; and
Whereas these persons are either not in possession of identification documents issued by the Malawi authorities or are in possession of documents not recognised by the South African authorities; and
Whereas these persons are therefore subject to repatriation to Malawi in terms of South African laws; and
Whereas it is the desire of the Republic of South Africa, on the one hand, to establish administrative arrangements to regularize the position of these Malawians, and it is the desire of the Republic of Malawi, on the other hand, to secure continued employment for these Malawians and also additional [possible outlets for the employment of Malawians in the Republic of South Africa; and having regard to the spirit of friendly co-operation and good neighbourliness which characterise the relations between both Governments;
Now, therefore, officials of both countries having held discussions at Pretoria from the 20th to 24th February, 1967, and at Blantyre from the 5th to 10th may, 1967, have agreed to present to their respective Governments the following proposed arrangements:-
ARTICLE 1
PASSPORTS
All Malawi citizens in South Africa at the date of this Agreement and thereafter shall be in possession of Malawi International Passports.
To this end, the South African Authorities shall render all possible assistance to ensure that every Malawi citizen obtains a Malawi Passport.
In rendering this assistance, the Government of South Africa will consider employing Malawi citizens at the offices of Bantu Affairs Commissioners for the purpose of assisting individual Malawi workers to complete the passport application forms.
In rendering this assistance, the Government of South Africa undertakes to give maximum publicity to these passport requirements, including the circularising of employers and labour bureaux:
provided that all publicity regarding passport requirements in relation to Malawi Nationals shall be arranged in consultation between the appropriate South African Authorities and the Malawi Government Labour Representative.
The south African Authorities shall issue to a Malawi citizen applying for a Passport to the Bantu Affairs Commissioner in whose area he is employed a temporary permit valid for a period not exceeding six months, on payment of a fee of 50 cents (5/-).
Application forms for Passports and instructions for their completion in duplicate shall be made available by the Malawi Government labour Representative to all Bantu Affairs Commissioners who shall assist applicants in their completion and collect passport fees. The original completed application accompanied by three passport photographs and the passport fee shall be forwarded to the Malawi Government Labour Representative while the duplicate with one photograph shall be returned to the applicant by the Bantu Affairs Commissioner.
The Malawi Government Labour Representative in Johannesburg shall continue to receive applications for Passports which shall be completed in duplicate. The said Representative shall then refer the applicant to the Bantu Affairs Commissioner in whose areas he is employed with a duplicate copy of the completed application, the receipt for the passport fee and a passport photograph. Thereupon, the applicant shall be issued a temporary permit as in (e) above.
The Malawi Immigration Authorities shall return the Passports for delivery through the office of the relevant Bantu Affairs Commissioner in South Africa.
ARTICLE 2
ENDORSEMENTS
All Malawi citizens entering into contract of employment in South Africa shall also be issued, in addition to Passports, with separate Employment Record books, in a form to be agreed, which shall contain inter alia, the following information:-
the International Passport Number of the passport held by the bearer;
a photograph of the holder authenticated by an embossed stamp;
a certificate to the effect that the bearer is a citizen of Malawi;
authority to enter into employment;
particulars of the contract of employment;
record of tax payments.
An Employment Record Book shall be issued on payment of 50 cents.
The Bantu Affairs Commissioner when delivering the Passport and the separate Employment Record Book to the Malawi citizen shall cause the Employment Record Book to be endorsed sanctioning his employment in South Africa.
Upon the delivery of the Passport and the Employment Record Book, all other identity documents originally issued by the South African Government shall be surrendered to the Bantu Affairs Commissioner. Documents originally issued by the Malawi Government shall be retained by the Malawi citizen for future reference.
It is understood that NO endorsements shall be made in International Passports other than normal immigration entries by South African Authorities. Any and all endorsements pertaining to employment shall be entered in the Employment Record Book.
ARTICLE 3
VALIDITY OF PASSPORT
International Passports issued to Malawi citizens employed or to be employed in South Africa shall be valid for travel to Portuguese East Africa, Rhodesia, Lesotho, Botswana and Swaziland.
ARTICLE 4
PASSPORT AND TRAVEL DOCUMENT ISSUED TO MINE WORKERS
The Malawi Government undertakes to issue International Passports and the Employment Record Books referred to in Article 2 to all new mine workers.
Travel documents issued by the Mines Labour Organisations (Wenela) Ltd. (hereinafter designated as Wenela) which are lost shall be replaced by International Passports and Employment Record Books.
ARTICLE 5
REPLACING DOCUMENTS
Malawi citizens losing their Passports or Employment Record Books shall be obliged to apply to the relevant Bantu Affairs Commissioner for a replacement. The Bantu Affairs Commissioner shall endeavour to trace the number of the original document and for such purpose shall have such identification documents of the applicant completed as may be required by the South African Authorities.
The Malawi Government shall endorse the number of the original Passport and the Employment Record Book on the replacement document and shall charge to the applicant the same fee as for a new document.
ARTICLE 6
AGREEMENT WITH MINES LABOUR ORGANISATIONS
(WENELA) LTD.
The Government of Malawi has undertaken to arrange the revision of the Employment Agreement of 1st November, 1965, currently in force between the Mines Labour Organisations (Wenela) Ltd. and the Ministry of Labour of the Malawi Government, in accordance with these principles hereinafter agreed by the two Governments in Article 7. Subject to the foregoing the South African Government is n accord with the continuation of the Employment Agreement.
The two Governments agree that the above Employment Agreement shall henceforth be regarded as provided for within and related to the instant Inter-Governmental Agreement. Thereafter any further substantive revision of the above Employment Agreement shall be subject to the formal approval of both Governments.
ARTICLE 7
PRINCIPLES GOVERNING EMPLOYMENT CONTRACTS
The principles referred to in Article 6 (a) above shall be as follows:-
Wenela may engage persons of Malawi origin in Malawi for employment in South Africa, so long as sufficient South African labour is not available. If sufficient South African workers become available for the mining industry, the South African Government may, subject to prior consultation with the Malawi Government, require suspension of engagement facilities for persons of Malawi origin. If a suspension is inaugurated, the South African Government shall formally notify the Malawi Government of the effective date of the suspension not less than twelve months prior to that date.
In case of such suspension, Malawi citizens already employed in South Africa shall be allowed to complete their current employment.
Malawi citizens engaged for work in South Africa shall be documented and finger-printed in Malawi prior to entry, in accordance with requirements applicable to all other migrant workers entering South Africa.
Contracts of employment must be entered into in Malawi for periods of twelve, eighteen, or twenty-four months but a person who has entered into a contract of employment for a period of less than twenty-four months shall be permitted to extend his contract for a period not exceeding in the aggregate twenty-four months.
Wenela shall report forthwith to the Malawi Government Labour Representative and to the appropriate South African Authorities in case of desertion.
Persons of non-Malawi origin shall not be engaged in Malawi for work in South Africa except with the prior approval of the two Governments.
Persons of Malawi origin shall not be engaged in South Africa unless authorised thereto by the appropriate South African Authorities.
All Malawi citizens shall be repatriated by Wenela in the termination of their contracts: Provided that a reasonable time shall be given to each repatriate to arrange his personal affairs before he shall be required to leave South Africa.
All Malawi workers shall be passed as medically fit before leaving Malawi and if thereafter they are found to be medically unfit shall be repatriated to Malawi at the expense of the employer as soon as reasonably possible.
All Malawi workers en route to South Africa and all repatriates shall be accompanied by conductors. The South African Authorities shall be advised of the names of all persons who do not arrive at their destination.
ARTICLE 8
REGULARISATION OF THE POSITION OF MALAWI CITIZENS
(OTHER THAN WORKERS ON THE AFFILIATED MINES)
PRESENTLY IN SOUTH AFRICA
Category A
This category shall include:
Persons who have been in the Republic of South Africa for a considerable period. The repatriation of such a person, if of good conduct, may be suspended for five-yearly periods and in the meantime he may remain in or take up new employment. He may visit Malawi and will be guaranteed return provided he applies for a re-entry permit before leaving South Africa. No such permission shall, however, be granted in respect of the Western Cape but a person shall be permitted to take up equivalent or other employment outside that area. No South African citizenship shall be granted to such a person.
Category B
Shall include persons who have been authorised by a South African Labour bureau to take up employment in South Africa.
Such persons shall be permitted to enter contracts with their present employers or with other employers for a period of two years which may be extended with the concurrence of the relevant South African Authorities.
All such contracts shall be deemed to have commenced from the date of this Agreement.
At the conclusion of the contract period such persons shall be liable to be repatriated to Malawi.
If compulsory leave to Malawi for the minimum period of six months is found to be necessary, assurances shall be given to the person concerned by the South African Government before his departure that he will be permitted to return for a further contract of service on completion of the leave period.
No persons in this category shall be allowed to remain in employment in the Western Cape, but such persons shall be allowed to choose between accepting equivalent or other employment offered elsewhere and returning to Malawi.
Category C
This category shall include Malawi citizens in South Africa on the date of this Agreement or within three months thereafter, who do not possess the requisite permission to be in employment in South Africa:
With the concurrence of the relevant urban local authority in South Africa such persons may be permitted to continue in their current employment in the prescribed areas. Failing such concurrence they shall be offered other employment in non-prescribed areas for a period of two years. Following this period of employment they shall return to Malawi for a period of at least six months. Thereafter, they shall, with the concurrence of the South African authorities, be eligible for a further contract of employment.
All persons who are so repatriated shall be given a reasonable time to arrange their personal affairs before being required to leave South Africa.
Category D
This category shall include Malawi workers entering South Africa illegally after the date of this Agreement. Such persons shall be liable to immediate repatriation: Provided that a person who applied for a passport within three months of the date of this Agreement shall be deemed to have entered South Africa before the date of the Agreement.
ARTICLE 9
HEALTH REQUIREMENTS
All Malawi citizens entering south Africa either as workers or as visitors under this Agreement shall have as a condition of entry a current certificate of successful vaccination against smallpox.
The Malawi Government undertakes to ensure that the Certificate of Vaccination against Small pox will be entered in the Passport or Employment Record Book.
The South African authorities may refuse to admit into South Africa any person who has not undergone a clinical examination or who is known to be suffering from tuberculosis or malaria.
ARTICLE 10
DESERTERS
A person from Malawi who has deserted from his employment in the Republic of South Africa without just cause shall not be permitted to take up other employment but shall be referred to back to his previous employer for completion of his contract of employment. On a second desertion such person shall be repatriated to Malawi by his employer who may recover the cost thereof from any wages or other monies due to such person or found in his possession. At the same time such person shall be black-listed for future employment in South Africa. For this purpose his Employment Record Book shall be endorsed "L.R." (Landing Refused). The appropriate South African authorities and the Malawi Government Labour Representative shall be notified for any desertion and of an y black-listing.
For purposes of paragraph (a) and employer’s responsibilities to repatriate any person in or previously in his employ shall continue until such time as he produces proof to the satisfaction of his relevant South African authorities that the person concerned has in fact arrived in Malawi.
ARTICLE 11
REPATRIATION
Should repatriation be carried out by means other than air transport, a list of the persons sent forward by the employer and a list of those arriving in Malawi shall be supplied to the appropriate South African authorities.
All Malawi citizens being repatriated shall be given a reasonable amount of time to arrange their personal affairs before being required to leave South Africa.
The South African Government undertakes to negotiate with neighbouring states t provide arrangements whereby an immigration officer at any port of entry will satisfy himself that a person repatriated is in fact in possession of the prescribed identification and transport documents.
A person who has been repatriated as a prohibited immigrant shall not be permitted to return to the Republic of South Africa on a contract of employment.
It shall be a condition of employment of any Malawi citizens in the Republic of South Africa that the employer shall, subject to other provisions of this Agreement, cause such person to be repatriated to Malawi on termination of a contract of employment and such employer’s responsibility to repatriate such person shall continue until such time as he produces proof to the satisfaction of the South African authorities that the person concerned in fact arrived in Malawi.
ARTICLE 12
SOUTH AFRICAN WOMEN MARRIED TO
MALAWI NATIONALS
South African women married to Malawi citizens and their children below the age of eighteen years shall be required to obtain a South African passport or travel document before leaving South Africa if they are likely to wish to return to South Africa at any time. Women still in possession of current South African passports may return to South Africa without obtaining prior approval. Applications for women without valid South African travel or residential documents to revisit South Africa shall be made directly through the Malawi Immigration Authorities to the appropriate South African authorities.
ARTICLE 13
TRANSPORTATION OF MALAWI WORKERS
The Governments of Malawi and South Africa agree in principle that all labour shall be transported by the direct air route as soon as the Government of Malawi finds it to be practicable.
ARTICLE 14
REPATRIATION FEES
The South African authorities reserve the right to collect from the employer in respect of every Malawi citizen, as of every other alien, who is found to have entered the Republic of south Africa clandestinely and who is placed in employment pending his identification by the Malawi authorities with a view to his repatriation to Malawi, an amount sufficient to cover the cost of repatriation of such person to his country of origin.
ARTICLE 15
ADDITIONAL AVENUES AND CONDITIONS OF EMPLOYMENT
The South African authorities agree to explore the possibility of finding additional avenues of employment for Malawi citizens on a migratory basis, provided South African labour is not available.
It is understood that no persons shall be allowed to enter the Republic of South Africa in search in employment
A Malawi citizen shall only be permitted to enter the Republic of South Africa for purposes of employment on written permission of the relevant South African authority and then only with the concurrence of the Malawi authorities and after compliance with a procedure mutually agreed upon.
The provisions of paragraphs (b), (c), (d), (e), (h), (i) and (j) of Article 7 shall a apply mutatis mutandis, any reference therein to Wenela being construed as a reference to any other employer.
ARTICLE 16
VISITS TO SOUTH AFRICA
Wives and children from Malawi of Malawi citizens employed in South Africa shall not be allowed to South Africa, save with the prior approval of the Government of South Africa for humanitarian reasons.
Any Malawi citizen wishing to visit the Republic of South Africa (including a Minister of Religion who wishes to take up employment) shall require a visa. Applications for such visa shall be made timeously through the Malawi Immigration Authorities direct to the Secretary for the Interior, Private Bag 114, Pretoria, on the form prescribed for the purpose and to which shall be stated the address at which the visitor proposes to stay, the purpose of the visit and the probable duration of the visit. A further three copies of the application form shall also be forwarded but without photographs to the Secretary for Bantu Administration and Development, P.O.Box 384, Pretoria.
All applications by Malawi citizens for enrolment in South African universities and other institutions of training or learning shall be channelled through one authority in the Malawi Government which shall be duly notified to the South African Government. The Government of Malawi shall give adequate publicity to these arrangements.
ARTICLE 17
FINANCIAL PROVISIONS
Taxation. Malawi citizens referred to in Article 8 as falling in Category A shall be liable to South African tax. All other Malawi citizens within South Africa shall be liable for Malawi tax. The primary obligation to pay tax shall be on the Malawi citizen. Where possible, arrangements will be made with employers to deduct the tax and forward it to the Malawi Government Representative. Evidence of tax payment shall be entered in the Employment Record Book.
Deferred Pay. All employment contracts entered into under this Agreement shall contain provisions for deferred pay to be deducted in South Africa and paid in Malawi. The employer shall be responsible for deducting deferred pay at rated to be specified in the employment contract. The South African authorities will endeavour to ensure that employers carry out their obligation to deduct deferred pay.
Family Remittances. All employment contracts entered into under this Agreement shall provide for remittances to be made to the families resident in Malawi of Malawi citizens employed in the Republic of South Africa. Family remittances shall be authorised deductions from employees’ wages; employers shall be responsible for deducting and forwarding the remittance in the manner prescribed in the employment contract.
ARTICLE 18
MALAWI GOVERNMENT LABOUR REPRESENTATIVE
The Malawi Government may with the concurrence of the South African Government appoint an officer to be known as the Malawi Government Labour Representative who shall be stationed in South Africa.
The Malawi Government Labour Representative, in the performance of his functions under this Agreement shall, inter alia:
obtain information on the conditions of employment of Malawi workers in South Africa;
have access to all South African employers of Malawi workers;
be consulted by the appropriate South African Authorities with regard to all matters relating to the employment, housing and general welfare of Malawi workers;
consult, for the purpose of investigation, the appropriate South African Authorities with regard to any cases of alleged hardship or irregularity affecting the welfare and conditions of employment of Malawi workers in South Africa;
be consulted by the appropriate South African Authorities prior to the issue of any directives affecting the welfare and conditions of employment of Malawi workers in South Africa;
administer, in consultation with the appropriate South African Authorities, the provisions of this Agreement including tax collection, deferred pay and family remittances, and the establishment of a Deposit and Transfer Agency for monies belonging to Malawi workers to be remitted to Malawi;
encourage Malawi workers, whether or not under contract employment to utilise the facilities of his office for any purpose when in need of aid and advice;
consult with the appropriate authorities of the South African Government over the repatriation of the sick, injured or destitute Malawi workers;
with the concurrence of the appropriate South African Authorities consult with Wenela and other employers with regard to the attestation of contracts, repatriation and other matters concerning contract workers, including mediation in any disputes between Malawi workers and employers;
mediate in civil disputes between Malawi workers;
provide, at the request of the appropriate authorities, vernacular-speaking interpreters in cases involving Malawi citizens;
liaise with Bantu Affairs Commissioners, the Rand Mutual Assurance Company, the South African Workmen’s Compensation Commissioner on the one hand and District Commissioners in Malawi on the other in regard to Workmen’s Compensation and pneumoconiosis claims for migrant workers or their dependents;
be consulted by and consult with the appropriate South African Authorities with regard to any other matter concerning the effective administration of this Agreement.
ARTICLE 19
VALIDITY, AMENDMENT AND DENUNCIATION OF AGREEMENT
This Agreement shall enter into force on the first day of August 1, 1967, and shall be valid for an initial period of five years from that date. Thereafter it shall be regarded as having been automatically extended for yearly periods, unless notice of intention to terminate has been given through diplomatic channels twelve months before the notified date of termination.
Notwithstanding any termination of this Agreement any contract of employment then in existence shall be permitted to run its ordinary course.
Where either Government desires to make representations to the other on matters arising out of this Agreement, such representations shall be made by an exchange of diplomatic notes. Routine administrative matters may, however, be the subject of direct consultation between the appropriate authorities of Malawi and South Africa.
Amendments to this Agreement shall be effected by the exchange of diplomatic notes between the two Governments.
The two Governments agree to consult should one of them find it necessary to suspend the operation of any or all provisions of this Agreement for any significant length of time.
Upon receipt of a Note indicating that the foregoing provisions are acceptable to the Government of the Republic of Malawi, the Government of the Republic of South Africa will consider that this note and the Ministry’s Note of reply thereto constitute an agreement between the two Governments on this subject.
The Department of Foreign Affairs of the Republic of South Africa avails itself of this opportunity to renew to the Ministry of External Affairs of the Republic of Malawi the assurance of its highest consideration.
B.G. FOURIE
Pretoria.
1st, August, 1967.
The Ministry of External Affairs of the Republic of Malawi presents its compliments to the Department of Foreign Affairs of the Republic of South Africa and has the honour to refer to the Department’s Note No. 14/38 of the 1st August, 1967, proposing that the Governments of Malawi and South Africa should enter into Agreement relating to the Employment and Documentation of Malawi Nationals in South Africa, which reads as follows: -
The Department of Foreign Affairs of the Republic of South Africa presents its compliments to the Ministry of External Affairs of the Republic of Malawi and, with reference to the proposed conclusion of an agreement between the Government of the Republic of South Africa and the Government of the Republic of Malawi relating to the employment and documentation of Malawi nationals in South Africa, has the honour to state that it is the understanding of the South African Government that the agreement shall provide as follows:
"Agreement between the Governments of Malawi and South Africa relating to the Employment and Documentation of Malawi Nationals in South Africa
PREAMBLE
Whereas the Government of the Republic of Malawi and the Government of the Republic of South Africa have taken note of the fact that there is in the Republic of South Africa a large number of persons of Malawi origin who are employed on mines affiliated to the Transvaal and Orange Free State Chamber of Mines or on other mines or in other employment; and
Whereas these persons are either not in possession of identification documents issued by the Malawi authorities or are in possession of documents not recognised by the South African authorities; and
Whereas these persons are therefore subject to repatriation to Malawi in terms of South African laws; and
Whereas it is the desire of the Republic of South Africa, on the one hand, to establish administrative arrangements to regularize the position of these Malawians, and it is the desire of the Republic of Malawi, on the other hand, to secure continued employment for these Malawians and also additional [possible outlets for the employment of Malawians in the Republic of South Africa; and having regard to the spirit of friendly co-operation and good neighbourliness which characterise the relations between both Governments;
Now, therefore, officials of both countries having held discussions at Pretoria from the 20th to 24th February, 1967, and at Blantyre from the 5th to 10th may, 1967, have agreed to present to their respective Governments the following proposed arrangements:-
ARTICLE 1
PASSPORTS
All Malawi citizens in South Africa at the date of this Agreement and thereafter shall be in possession of Malawi International Passports.
To this end, the South African Authorities shall render all possible assistance to ensure that every Malawi citizen obtains a Malawi Passport.
In rendering this assistance, the Government of South Africa will consider employing Malawi citizens at the offices of Bantu Affairs Commissioners for the purpose of assisting individual Malawi workers to complete the passport application forms.
In rendering this assistance, the Government of South Africa undertakes to give maximum publicity to these passport requirements, including the circularising of employers and labour bureaux:
provided that all publicity regarding passport requirements in relation to Malawi Nationals shall be arranged in consultation between the appropriate South African Authorities and the Malawi Government Labour Representative.
The south African Authorities shall issue to a Malawi citizen applying for a Passport to the Bantu Affairs Commissioner in whose area he is employed a temporary permit valid for a period not exceeding six months, on payment of a fee of 50 cents (5/-).
Application forms for Passports and instructions for their completion in duplicate shall be made available by the Malawi Government labour Representative to all Bantu Affairs Commissioners who shall assist applicants in their completion and collect passport fees. The original completed application accompanied by three passport photographs and the passport fee shall be forwarded to the Malawi Government Labour Representative while the duplicate with one photograph shall be returned to the applicant by the Bantu Affairs Commissioner.
The Malawi Government Labour Representative in Johannesburg shall continue to receive applications for Passports which shall be completed in duplicate. The said Representative shall then refer the applicant to the Bantu Affairs Commissioner in whose areas he is employed with a duplicate copy of the completed application, the receipt for the passport fee and a passport photograph. Thereupon, the applicant shall be issued a temporary permit as in (e) above.
The Malawi Immigration Authorities shall return the Passports for delivery through the office of the relevant Bantu Affairs Commissioner in South Africa.
ARTICLE 2
ENDORSEMENTS
All Malawi citizens entering into contract of employment in South Africa shall also be issued, in addition to Passports, with separate Employment Record books, in a form to be agreed, which shall contain inter alia, the following information:-
the International Passport Number of the passport held by the bearer;
a photograph of the holder authenticated by an embossed stamp;
a certificate to the effect that the bearer is a citizen of Malawi;
authority to enter into employment;
particulars of the contract of employment;
record of tax payments.
An Employment Record Book shall be issued on payment of 50 cents.
The Bantu Affairs Commissioner when delivering the Passport and the separate Employment Record Book to the Malawi citizen shall cause the Employment Record Book to be endorsed sanctioning his employment in South Africa.
Upon the delivery of the Passport and the Employment Record Book, all other identity documents originally issued by the South African Government shall be surrendered to the Bantu Affairs Commissioner. Documents originally issued by the Malawi Government shall be retained by the Malawi citizen for future reference.
It is understood that NO endorsements shall be made in International Passports other than normal immigration entries by South African Authorities. Any and all endorsements pertaining to employment shall be entered in the Employment Record Book.
ARTICLE 3
VALIDITY OF PASSPORT
International Passports issued to Malawi citizens employed or to be employed in South Africa shall be valid for travel to Portuguese East Africa, Rhodesia, Lesotho, Botswana and Swaziland.
ARTICLE 4
PASSPORT AND TRAVEL DOCUMENT ISSUED TO MINE WORKERS
The Malawi Government undertakes to issue International Passports and the Employment Record Books referred to in Article 2 to all new mine workers.
Travel documents issued by the Mines Labour Organisations (Wenela) Ltd. (hereinafter designated as Wenela) which are lost shall be replaced by International Passports and Employment Record Books.
ARTICLE 5
REPLACING DOCUMENTS
Malawi citizens losing their Passports or Employment Record Books shall be obliged to apply to the relevant Bantu Affairs Commissioner for a replacement. The Bantu Affairs Commissioner shall endeavour to trace the number of the original document and for such purpose shall have such identification documents of the applicant completed as may be required by the South African Authorities.
The Malawi Government shall endorse the number of the original Passport and the Employment Record Book on the replacement document and shall charge to the applicant the same fee as for a new document.
ARTICLE 6
AGREEMENT WITH MINES LABOUR ORGANISATIONS
(WENELA) LTD.
The Government of Malawi has undertaken to arrange the revision of the Employment Agreement of 1st November, 1965, currently in force between the Mines Labour Organisations (Wenela) Ltd. and the Ministry of Labour of the Malawi Government, in accordance with these principles hereinafter agreed by the two Governments in Article 7. Subject to the foregoing the South African Government is n accord with the continuation of the Employment Agreement.
The two Governments agree that the above Employment Agreement shall henceforth be regarded as provided for within and related to the instant Inter-Governmental Agreement. Thereafter any further substantive revision of the above Employment Agreement shall be subject to the formal approval of both Governments.
ARTICLE 7
PRINCIPLES GOVERNING EMPLOYMENT CONTRACTS
The principles referred to in Article 6 (a) above shall be as follows:-
Wenela may engage persons of Malawi origin in Malawi for employment in South Africa, so long as sufficient South African labour is not available. If sufficient South African workers become available for the mining industry, the South African Government may, subject to prior consultation with the Malawi Government, require suspension of engagement facilities for persons of Malawi origin. If a suspension is inaugurated, the South African Government shall formally notify the Malawi Government of the effective date of the suspension not less than twelve months prior to that date.
In case of such suspension, Malawi citizens already employed in South Africa shall be allowed to complete their current employment.
Malawi citizens engaged for work in South Africa shall be documented and finger-printed in Malawi prior to entry, in accordance with requirements applicable to all other migrant workers entering South Africa.
Contracts of employment must be entered into in Malawi for periods of twelve, eighteen, or twenty-four months but a person who has entered into a contract of employment for a period of less than twenty-four months shall be permitted to extend his contract for a period not exceeding in the aggregate twenty-four months.
Wenela shall report forthwith to the Malawi Government Labour Representative and to the appropriate South African Authorities in case of desertion.
Persons of non-Malawi origin shall not be engaged in Malawi for work in South Africa except with the prior approval of the two Governments.
Persons of Malawi origin shall not be engaged in South Africa unless authorised thereto by the appropriate South African Authorities.
All Malawi citizens shall be repatriated by Wenela in the termination of their contracts: Provided that a reasonable time shall be given to each repatriate to arrange his personal affairs before he shall be required to leave South Africa.
All Malawi workers shall be passed as medically fit before leaving Malawi and if thereafter they are found to be medically unfit shall be repatriated to Malawi at the expense of the employer as soon as reasonably possible.
All Malawi workers en route to South Africa and all repatriates shall be accompanied by conductors. The South African Authorities shall be advised of the names of all persons who do not arrive at their destination.
ARTICLE 8
REGULARISATION OF THE POSITION OF MALAWI CITIZENS
(OTHER THAN WORKERS ON THE AFFILIATED MINES)
PRESENTLY IN SOUTH AFRICA
Category A
This category shall include:
Persons who have been in the Republic of South Africa for a considerable period. The repatriation of such a person, if of good conduct, may be suspended for five-yearly periods and in the meantime he may remain in or take up new employment. He may visit Malawi and will be guaranteed return provided he applies for a re-entry permit before leaving South Africa. No such permission shall, however, be granted in respect of the Western Cape but a person shall be permitted to take up equivalent or other employment outside that area. No South African citizenship shall be granted to such a person.
Category B
Shall include persons who have been authorised by a South African Labour bureau to take up employment in South Africa.
Such persons shall be permitted to enter contracts with their present employers or with other employers for a period of two years which may be extended with the concurrence of the relevant South African Authorities.
All such contracts shall be deemed to have commenced from the date of this Agreement.
At the conclusion of the contract period such persons shall be liable to be repatriated to Malawi.
If compulsory leave to Malawi for the minimum period of six months is found to be necessary, assurances shall be given to the person concerned by the South African Government before his departure that he will be permitted to return for a further contract of service on completion of the leave period.
No persons in this category shall be allowed to remain in employment in the Western Cape, but such persons shall be allowed to choose between accepting equivalent or other employment offered elsewhere and returning to Malawi.
Category C
This category shall include Malawi citizens in South Africa on the date of this Agreement or within three months thereafter, who do not possess the requisite permission to be in employment in South Africa:
With the concurrence of the relevant urban local authority in South Africa such persons may be permitted to continue in their current employment in the prescribed areas. Failing such concurrence they shall be offered other employment in non-prescribed areas for a period of two years. Following this period of employment they shall return to Malawi for a period of at least six months. Thereafter, they shall, with the concurrence of the South African authorities, be eligible for a further contract of employment.
All persons who are so repatriated shall be given a reasonable time to arrange their personal affairs before being required to leave South Africa.
Category D
This category shall include Malawi workers entering South Africa illegally after the date of this Agreement. Such persons shall be liable to immediate repatriation: Provided that a person who applied for a passport within three months of the date of this Agreement shall be deemed to have entered South Africa before the date of the Agreement.
ARTICLE 9
HEALTH REQUIREMENTS
All Malawi citizens entering south Africa either as workers or as visitors under this Agreement shall have as a condition of entry a current certificate of successful vaccination against smallpox.
The Malawi Government undertakes to ensure that the Certificate of Vaccination against Small pox will be entered in the Passport or Employment Record Book.
The South African authorities may refuse to admit into South Africa any person who has not undergone a clinical examination or who is known to be suffering from tuberculosis or malaria.
ARTICLE 10
DESERTERS
A person from Malawi who has deserted from his employment in the Republic of South Africa without just case shall not be permitted to take up other employment but shall be referred to back to his previous employer for completion of his contract of employment. On a second desertion such person shall be repatriated to Malawi by his employer who may recover the cost thereof from any wages or other monies due to such person or found in his possession. At the same time such person shall be black-listed for future employment in South Africa. For this purpose his Employment Record Book shall be endorsed "L.R." (Landing Refused). The appropriate South African authorities and the Malawi Government Labour Representative shall be notified for any desertion and of an y black-listing.
For purposes of paragraph (a) and employer’s responsibilities to repatriate any person in or previously in his employ shall continue until such time as he produces proof to the satisfaction of his relevant South African authorities that the person concerned has in fact arrived in Malawi.
ARTICLE 11
REPATRIATION
Should repatriation be carried out by means other than air transport, a list of the persons sent forward by the employer and a list of those arriving in Malawi shall be supplied to the appropriate South African authorities.
All Malawi citizens being repatriated shall be given a reasonable amount of time to arrange their personal affairs before being required to leave South Africa.
The South African Government undertakes to negotiate with neighbouring states t provide arrangements whereby an immigration officer at any port of entry will satisfy himself that a person repatriated is in fact in possession of the prescribed identification and transport documents.
A person who has been repatriated as a prohibited immigrant shall not be permitted to return to the Republic of South Africa on a contract of employment.
It shall be a condition of employment of any Malawi citizens in the Republic of South Africa that the employer shall, subject to other provisions of this Agreement, cause such person to be repatriated to Malawi on termination of a contract of employment and such employer’s responsibility to repatriate such person shall continue until such time as he produces proof to the satisfaction of the South African authorities that the person concerned in fact arrived in Malawi.
ARTICLE 12
SOUTH AFRICAN WOMEN MARRIED TO
MALAWI NATIONALS
South African women married to Malawi citizens and their children below the age of eighteen years shall be required to obtain a South African passport or travel document before leaving South Africa if they are likely to wish to return to South Africa at any time. Women still in possession of current South African passports may return to South Africa without obtaining prior approval. Applications for women without valid South African travel or residential documents to revisit South Africa shall be made directly through the Malawi Immigration Authorities to the appropriate South African authorities.
ARTICLE 13
TRANSPORTATION OF MALAWI WORKERS
The Governments of Malawi and South Africa agree in principle that all labour shall be transported by the direct air route as soon as the Government of Malawi finds it to be practicable.
ARTICLE 14
REPATRIATION FEES
The South African authorities reserve the right to collect from the employer in respect of every Malawi citizen, as of every other alien, who is found to have entered the Republic of south Africa clandestinely and who is placed in employment pending his identification by the Malawi authorities with a view to his repatriation to Malawi, an amount sufficient to cover the cost of repatriation of such person to his country of origin.
ARTICLE 15
ADDITIONAL AVENUES AND CONDITIONS OF EMPLOYMENT
The South African authorities agree to explore the possibility of finding additional avenues of employment for Malawi citizens on a migratory basis, provided South African labour is not available.
It is understood that no persons shall be allowed to enter the Republic of South Africa in search in employment
A Malawi citizen shall only be permitted to enter the Republic of South Africa for purposes of employment on written permission of the relevant South African authority and then only with the concurrence of the Malawi authorities and after compliance with a procedure mutually agreed upon.
The provisions of paragraphs (b), (c), (d), (e), (h), (i) and (j) of Article 7 shall a apply mutatis mutandis, any reference therein to Wenela being construed as a reference to any other employer.
ARTICLE 16
VISITS TO SOUTH AFRICA
Wives and children from Malawi of Malawi citizens employed in South Africa shall not be allowed to South Africa, save with the prior approval of the Government of South Africa for humanitarian reasons.
Any Malawi citizen wishing to visit the Republic of South Africa (including a Minister of Religion who wishes to take up employment) shall require a visa. Applications for such visa shall be made timeously through the Malawi Immigration Authorities direct to the Secretary for the Interior, Private Bag 114, Pretoria, on the form prescribed for the purpose and to which shall be stated the address at which the visitor proposes to stay, the purpose of the visit and the probable duration of the visit. A further three copies of the application form shall also be forwarded but without photographs to the Secretary for Bantu Administration and Development, P.O.Box 384, Pretoria.
All applications by Malawi citizens for enrolment in South African universities and other institutions of training or learning shall be channelled through one authority in the Malawi Government which shall be duly notified to the South African Government. The Government of Malawi shall give adequate publicity to these arrangements.
ARTICLE 17
FINANCIAL PROVISIONS
Taxation. Malawi citizens referred to in Article 8 as falling in Category A shall be liable to South African tax. All other Malawi citizens within South Africa shall be liable for Malawi tax. The primary obligation to pay tax shall be on the Malawi citizen. Where possible, arrangements will be made with employers to deduct the tax and forward it to the Malawi Government Representative. Evidence of tax payment shall be entered in the Employment Record Book.
Deferred Pay. All employment contracts entered into under this Agreement shall contain provisions for deferred pay to be deducted in South Africa and paid in Malawi. The employer shall be responsible for deducting deferred pay at rated to be specified in the employment contract. The South African authorities will endeavour to ensure that employers carry out their obligation to deduct deferred pay.
Family Remittances. All employment contracts entered into under this Agreement shall provide for remittances to be made to the families resident in Malawi of Malawi citizens employed in the Republic of South Africa. Family remittances shall be authorised deductions from employees’ wages; employers shall be responsible for deducting and forwarding the remittance in the manner prescribed in the employment contract.
ARTICLE 18
MALAWI GOVERNMENT LABOUR REPRESENTATIVE
The Malawi Government may with the concurrence of the South African Government appoint an officer to be known as the Malawi Government Labour Representative who shall be stationed in South Africa.
The Malawi Government Labour Representative, in the performance of his functions under this Agreement shall, inter alia:
obtain information on the conditions of employment of Malawi workers in South Africa;
have access to all South African employers of Malawi workers;
be consulted by the appropriate South African Authorities with regard to all matters relating to the employment, housing and general welfare of Malawi workers;
consult, for the purpose of investigation, the appropriate South African Authorities with regard to any cases of alleged hardship or irregularity affecting the welfare and conditions of employment of Malawi workers in South Africa;
be consulted by the appropriate South African Authorities prior to the issue of any directives affecting the welfare and conditions of employment of Malawi workers in South Africa;
administer, in consultation with the appropriate South African Authorities, the provisions of this Agreement including tax collection, deferred pay and family remittances, and the establishment of a Deposit and Transfer Agency for monies belonging to Malawi workers to be remitted to Malawi;
encourage Malawi workers, whether or not under contract employment to utilise the facilities of his office for any purpose when in need of aid and advice;
consult with the appropriate authorities of the South African Government over the repatriation of the sick, injured or destitute Malawi workers;
with the concurrence of the appropriate South African Authorities consult with Wenela and other employers with regard to the attestation of contracts, repatriation and other matters concerning contract workers, including mediation in any disputes between Malawi workers and employers;
mediate in civil disputes between Malawi workers;
provide, at the request of the appropriate authorities, vernacular-speaking interpreters in cases involving Malawi citizens;
liaise with Bantu Affairs Commissioners, the Rand Mutual Assurance Company, the South African Workmen’s Compensation Commissioner on the one hand and District Commissioners in Malawi on the other in regard to Workmen’s Compensation and pneumoconiosis claims for migrant workers or their dependents;
be consulted by and consult with the appropriate South African Authorities with regard to any other matter concerning the effective administration of this Agreement.
ARTICLE 19
VALIDITY, AMENDMENT AND DENUNCIATION OF AGREEMENT
This Agreement shall enter into force on the first day of August 1, 1967, and shall be valid for an initial period of five years from that date. Thereafter it shall be regarded as having been automatically extended for yearly periods, unless notice of intention to terminate has been given through diplomatic channels twelve months before the notified date of termination.
Notwithstanding any termination of this Agreement any contract of employment then in existence shall be permitted to run its ordinary course.
Where either Government desires to make representations to the other on matters arising out of this Agreement, such representations shall be made by an exchange of diplomatic notes. Routine administrative matters may, however, be the subject of direct consultation between the appropriate authorities of Malawi and South Africa.
Amendments to this Agreement shall be effected by the exchange of diplomatic notes between the two Governments.
The two Governments agree to consult should one of them find it necessary to suspend the operation of any or all provisions of this Agreement for any significant length of time.
Upon receipt of a Note indicating that the foregoing provisions are acceptable to the Government of the Republic of Malawi, the Government of the Republic of South Africa will consider that this note and the Ministry’s Note of reply thereto constitute an agreement between the two Governments on this subject.
The Department of Foreign Affairs of the Republic of South Africa avails itself of this opportunity to renew to the Ministry of External Affairs of the Republic of Malawi the assurance of its highest consideration.
The Ministry wishes to inform the Department that the Government of Malawi finds the text of the proposed Agreement contained in the Department’s foregoing note to be entirely acceptable. The Ministry further has the honour to confirm that the Government of Malawi regards the Department’s foregoing Note No. 14/38 if the 1st August 1967, and the Ministry’s present Note as together constituting an Agreement between the Governments of Malawi and South Africa relating to the Employment and Documentation of Malawi Nationals in South Africa, which entered into force on 1st August, 1967.
The Ministry of External Affairs of the Republic of Malawi avails itself of the opportunity to renew to the Department of Foreign Affairs of the Republic of South Africa the assurance of its highest consideration.
Blantyre.
1st August, 1967.