SOUTHERN AFRICAN MIGRATION PROGRAMME
SAMP

Immigration Policy Reform In South Africa Parliamentary Committed on Home Affairs: Meeting Minutes Immigration Law Reform in Southern Africa Bilateral Labour Agreements
Immigration Policy

Immigration Policy Reform in South Africa

June 2003: Constitutional Court Approves Immigration Regulations

May 2003: Establishment of Immigration Advisory Board

February 2003: Legal Challenges to Immigration Regulations

December 2002: Publication of Immigration Regulations

May 2002: Passage of South African Immigration Act, No. 13 of 2002, by South African Parliament

April 2002: Parliamentary Debates on Immigration Bill

March 2002: Update on South African immigration policy reform.

October 2001: Update on South African immigration policy reform.

June 2001: Tabling of Draft Immigration Bill in Parliament.

May 2001: Update on South African immigration policy reform.

April 2001: Update on South African immigration policy reform.

December 2000: An Update on the impasse in South African immigration policy reform

November 2000: Penultimate Report on the International Migration White Paper, Parliamentary Portfolio Committee.

November 2000: Minutes of Portfolio Committee Meeting of 1 November 2000.

November 2000: Response of political parties to Committee report.

September 2000: Draft Interim Portfolio Committee Report on White Paper released

September 2000: Minutes of Portfolio Committee Meeting of 12 September criticizing the process

August 2000: Parliamentary Portfolio Committee conducts regional public hearings on Draft White Paper.

August 2000: Draft Immigration Bill (PDF file) submitted to Cabinet

July 2000: DHA conference on Regulating Migration in the 21st Century in Parliament to discuss Immigration Bill.

May 2000: Closing date for public comment on Draft Bill.

May 2000: Parliamentary Portfolio Committee on Home Affairs conducts public hearings on Draft White Paper on International Migration.

April 2000: For an informed analysis of current policy developments see epolitics SA issue 13.

February 2000: Publication of Draft Immigration Bill (PDF file). For responses in the public domain, see Comments.

November 1999: Closing date for public comment on White Paper. For responses in the public domain see Comments on the White Paper.

March 1999: Publication of Draft White Paper on International Migration, modified and approved for public comment by Cabinet, Pretoria. For responses in the public domain, see Comments.

November 1998: New Refugees Bill becomes law.

August 1998: Appointment of Task Team to prepare White Paper on Immigration Policy by Department of Home Affairs.

August 1998: Revised White Paper on Refugees goes to Cabinet.

July 1998: Publication of Draft White Paper and Refugee Legislation on Refugees. Public submissions received until 20 July 1998. Responses in public domain.

March 1998: Appointment of Task Team of Department of Home Affairs officials and NGO representatives to prepare White Paper on Refugee Policy.

September 1997: Public Conference on Draft Green Paper co-hosted by SAMP and Parliamentary Portfolio Committee on Home Affairs, Cape Town.

August 1997: Closing date for submissions and comment on Draft Green Paper. Department of Home Affairs receives 52 submissions from organizations and individuals. Responses in public domain.

May 1997: Publication of Draft Green Paper on International Migration for public comment. Green Paper recommends separation of immigration and refugee policy and legislation.

November 1996: Appointment of Green Paper Task Team on International Migration by South African Government.

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Immigration Law Reform in Southern Africa

Immigration law is a relatively underdeveloped field in Southern Africa. To disseminate information about legal and constitutional challenges to existing legislation and policy, this section summarizes the key court cases since 1994.

I. Procedural Rights of Foreign Nationals

II. Immigration Policy

III. Immigration Administration

IV. Border Control and Arrest

V. Detention

VI. Refugee Law

VII. Substantive Rights of Foreign Nationals

Information about other cases in the SADC region will be gratefully received. Please send any information or commentary to samp@post.queensu.ca.

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Bilateral Labour Agreements

Introduction

South African immigration policy has been described as having “two gates.” Under the Aliens Control Act, immigration and temporary residence is governed by statute. However, exemption clauses in the Act allow for bilateral treaties with neighbouring states which govern the entry of contract workers, primarily in the mining and commercial agriculture sectors.

Bilateral treaties between South Africa and neighbouring states date back decades and were last updated in the 1 970s. These treaties, now badly outdated, still govern the entry of mine and farm workers to South Africa from Mozambique, Botswana, Lesotho and Swaziland. The treaty with Malawi is assumed to be defunct. The treaty with Mozambique was actually signed by the Portuguese colonial government. There is no official bilateral treaty between South Africa and Zimbabwe.

Bilateral labour treaties ensure that contract migration to South Africa is governed by regulations not by legal statute. These treaties also place considerable power and autonomy in the hands of the employers. Not for nothing have they been referred to as the “cornerstone” of the apartheid-era migrant labour system.

Since 1994, there have been numerous calls to renegotiate, modernize or abolish these old treaties. Attention has also repeatedly been drawn to the potentially unconstitutional aspects of the treaties, such as compulsory deferred pay. However, there has been little apparent progress.

One of the difficulties is that access to the text of the treaties is itself not easy. Prominent people in government and industry who deal with issues of migrant labour say that they have never even seen them. In the interests of fostering a public debate on the bilateral treaties and the whole future of contract labour, SAMP has decided to make the full text of the various agreements available electronically.

The mining industry’s contracts or agreements with their own workers are legitimized by and are supposed to be consistent with the treaties. Copies of these agreements are therefore also made available below.

Dissemination and debate is of paramount importance. The new South African Immigration Bill proposes to continue the system of exemptions. In effect, this would mean that the bilateral treaties can continue and the contract labour system will remain outside legislative control.

Text of Bilateral Treaties

Treaty Series No. 11/1964: Agreement between the Government of the Republic of South Africa and the Government of the Republic of Portugal regulating the employment of Portugese workers from the Province of Mozambique on certain mines in the Republic of South Africa (Place and Date of Signing: Lisbon, 1st October, 1964; Date of Entry into Force. 1st January 1965; Amended by exchange of Notes: 24th February, 1971 and 11th May, 1971).

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 (P/ace and date of signing: Pretoria and B/antyre, 1 August 1967, Date of entry in force: 1 August 1967)

Treaty Series No. 1/1973: Agreement between the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho relating to the establishment of an office for a Lesotho Government Labour Representative in the Republic of South Africa, Lesotho Citizens in the Republic of South Africa and the movement of such persons across the international border (Place and date of signature: Pretoria and Maseru, 24 August 1973; Date of entry in force: 24 August 1973)

Treaty Series No.3/1973: Agreement between the Government of the Republic of South Africa and the Government of the Republic of Botswana relating to the establishment of an office for a Botswana Government Labour Representative in the Republic of South Africa, Botswana Citizens in the Republic of South Africa and the movement of such persons across the international border (Place and date of signature: Pretoria Gaborone, 24 December 1973; Date of entry in force: 24 December 1973)

Treaty Series No.3/1986: Agreement between the Government of the Republic of South Africa and the Government of the Kingdom of Swaziland relating to the establishment of an office for a Swaziland government Labour Representative in the Republic of South Africa, certain Swaziland citizens in the Republic of South Africa, the movement of such persons across the common border and the movement of certain South African citizens across the common border, and addendum thereto (P/ace and date of signature: Pretoria, 22 August 1975, Date of entry in force: 22 August 1975)

Text of Recruiting Contracts

The Employment Bureau of Africa (TEBA), AGREEMENT OF SERVICE entered into between the Employee and TEBA acting on behalf of the Employer

WENELA (Mozambique), PROVISIONS AND CONDITIONS OF CONTRACT

Background Reading

These references are designed to assist those requiring greater information on the history and impact of the bilateral treaties and the migrant labour system in general:

Jonathan Crush, Alan Jeeves and David Yudelman, South Africa's Labor Empire: A History ofBlack Migrancy to the Gold Mines (Boulder, 1992).

Jonathan Crush and Wilmot James, eds., Crossing Boundaries. Mine Migrancy in a Democratic South Africa (Cape Town and Ottawa, 1995).

Jonathan Crush “Contract Migration to South Africa: Past, Present, Future” Briefing for the Green Paper Task Team on International Migration, Pretoria, 1997.

Wilmot James, Our Precious Metal. African Labour on South Africa's Gold Mines (Cape Town, 1993).

Alan Jeeves, Migrant Labour in South Africa's Mining Economy. The Struggle for the Gold Mines Labour Supply, 1890-1 920 (Kingston and Montreal, 1985).

Alan Jeeves and Jonathan Crush, eds., White Farms, Black Labor. The State andAgrarian Change in Southern Africa, 1910-50 (Oxford and Pietermaritzburg, 1997).

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