Jonathan Crush

Southern African Migration Project

Migration Policy Series No. 1

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Significant numbers of foreign workers, both legal and undocumented, are engaged in temporary work in the mining, commercial agriculture and construction sectors in Gauteng, Northern Province, Mpumalanga and Kwazulu-Natal. The actual numbers involved are unknown and unknowable under existing systems of data collection and migration policy. The issue of temporary employment is inextricably liked to the broader issue of undocumented migration to South Africa. The Aliens Control Act is based on principles of exclusion and expulsion. Because non-South African temporary workers have few legal modes of access to the South African labour market, they are unprotected by law and vulnerable to the sanctions of the Act. Penalties include criminalization, arrest, imprisonment and summary deportation. This report reviews the current state of knowledge about the temporary employment phenomenon in South Africa and the adequacy of the legal and policy instruments for managing the movement of temporary migrants for work in South Africa.

The first section of the report examines the regulatory framework around temporary employment schemes and, in particular, the "two gates" policy inherited from the previous regime. The inherent discrimination in this system is highlighted. The second section traces the demise of formal temporary employment schemes and their replacement by more informal, unregulated, systems of labour mobilization and deployment in the 1990s. Central to this process is the continuing flow of undocumented migrants from apartheid-ravaged countries of the region and the growing tendency in many sectors towards flexible labour arrangements, such as labour broking and sub-contracting. The third section of the report focuses on the impact of post-apartheid in-migration on temporary work and the absence of official regulation of the sectors in which these migrants are employed. The fact that so many workers are designated as "illegal" by the state paradoxically increases their attractiveness to employers in search of cheap, disposable, exploitable labour. The fourth section of the report examines the working and employment conditions of temporary workers in sectors such as mining and agriculture. The picture is incomplete and unsystematic but the extant evidence paints a disturbing picture of continuing exploitation and abuse, particularly of women and child migrants. The report finally looks at various new policy initiatives which could have far-reaching implications for the temporary work regime in South Africa.

The report concludes with several recommendations for policy-makers. These include a call for a more systematic research programme focused on temporary employment sectors; that the government, as a matter of urgency, should consider appointing a commission of enquiry into labour practices and working conditions in the major temporary employment sectors; that the two gates policy should be abolished; and that policy-makers make a clearer distinction between immigration and migration. Most temporary workers are migrants, not immigrants. The Aliens Control Act is a flawed policy instrument for regulating immigration, not migration. South Africa has an immigration policy of sorts, but no coherent migration policy. This is a major policy gap requiring urgent attention.