CONTRACT MIGRATION TO SOUTH AFRICA:
PAST, PRESENT AND FUTURE

by Jonathan Crush

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1.0 Introduction

International labour migration within the Southern African region is nothing new. In its modern form, migration to South Africa from the region dates back at least 150 years. Cross-border migration has taken various forms. At one end of the spectrum is the highly formalized and regulated contract labour system of the South African mines. At the other are various kinds of informal, unregulated or clandestine movements across borders. South Africa has been receiving both kinds of migrants for decades.

Census data shows that South Africa's foreign-born population was always significant and increased as the twentieth century progressed. The question that needs to be asked is what is truly new about post-1990 migration to South Africa? The standard answers are the massive numbers (we were informed recently by the Argus that Africa is "flooding" into Cape Town) and the more diverse origins (Africans from throughout the continent are now coming). Reliable statistics are unavailable to assess the accuracy of either of these claims. The other thing that has changed is the language used. Hardly a day goes by without some newspaper reference to "illegal aliens" or "illegals" flooding the country. The use of these terms by officialdom and the media to describe people from neighbouring states contributes to the growing xenophobia in the country.⁽¹⁾

This briefing paper focuses exclusively on contract migration to the South African mines. The issue of other forms of contract migration (to, for example, agriculture) is considered in a companion paper on temporary employment which will be tabled separately.⁽²⁾ The issue of contract migration is relevant to the Task Group discussions for at least five reasons:

• about half of the gold mine workforce is from outside South Africa. With unemployment rates of 20-40% in South Africa, and many retrenched South African miners looking for work, should the mines be employing this many foreigners or, indeed, any at all?
• even if a persuasive argument can be made for having this many non-South Africans on the mines, there are very serious questions to be raised about the system which brings them here. The NUM has been struggling for 15 years to change the exploitative and oppressive labour system that characterized the mines. The question is whether new policies can be devised to further that process of transformation and to produce a labour system that is consistent with constitutional principles, democratic practices and human rights.
• does transformation mean abolishing the system of contract migration altogether and, if so, how? Should foreign contract workers be treated instead as normal immigrants with the same rights, privileges and obligations? Or is there a case for the continuation of a humanized system of contract migration which recognizes that not all migrants are or wish to be immigrants?
• legalized, contract migration and undocumented, informal migration are generally thought to be linked at the household level. In other words, would the abolition or transformation of the contract system produce intensify or lessen the pressures for informal migration?
• consideration of the migration intentions and behaviours of legal, contract migrants may provide important clues to the likely (though currently unknown) behaviour and intentions of undocumented migrants. The actual documented migration behaviour of legal migrants may also provide insights into the likely behaviour of undocumented migrants if their status was to be legalized.

This paper tries to develop some answers to these questions. It is divided into four sections:

• The historical role of migrant workers from the Southern African region in the development of South Africa's industrial economy in the nineteenth and twentieth centuries;
• Recent trends in contract migration to South Africa;
• The bilateral labour agreements governing the movement of contract migrants to South Africa;
• Policy options for contract migration to South Africa.

2.0 A Brief History of Contract Migration⁽³⁾

2.1 South Africa's economic development in the twentieth century has been based on the exploitation of its mineral wealth, particularly its vast reserves of gold bearing ore. Mining has consistently been one of South Africa's most important industries, one of its biggest employers and the driving force of its industrial economy. It is worth noting, however, that if a low-grade ore body like South Africa's had been discovered in countries like Canada, Australia or the United States it would have been left in the ground because of the inability to mobilize the right kind of labour force.⁽⁴⁾ Without migrant workers from throughout the Southern African region, the world's largest supplier of gold would have been, at best, a minor producer. South Africa would thus be a very different place today (perhaps more like Argentina or Kenya).

2.2 The large-scale employment of non-South African labour from the region by the South African mines goes back 150 years. Then migrants from Mozambique, Malawi and Lesotho came on foot to work on the Kimberly diamond mines. When the Witwatersrand gold mines opened in the 1890s, migrants from these areas were joined by migrants from many other parts of the region - Swaziland, Botswana, Zimbabwe, Zambia and Angola. Migration for work preceded the drawing of colonial boundaries and cross-border migration continued after those borders were established.

2.3 Within the region as a whole, there developed a series of overlapping migration streams funnelling labour to the major employment centres - the Zambian Copperbelt, the Zimbabwean coal and gold mines, the South African mines, and the commercial farms of Malawi, Mozambique, Swaziland and South Africa. The point to emphasize is that cross-border migration for work is not a new phenomenon in South and Southern Africa. It has been going on in various forms for decades.

2.4 The South African mining industry - in cooperation with the South African state and the British and Portuguese colonial governments - created a regional labour market for mine labour in the late nineteenth and early twentieth centuries that included most of the countries that now comprise the SADC.

This regional labour market (sometimes referred to as a "labour empire" or "regional economic system") has several characteristics:

• At one time or another virtually every country in the SADC has been a part of this regional labour market for the South African mines
• The labour market has been a dynamic entity responsive to changes in political and economic circumstances in source and destination areas. Patterns of labour flow from any one country, and even within each country, changed significantly over time without compromising the integrity of the overall system;
• The organization of mines labour market was highly centralized, organized and selective. Indeed the mining industry has virtually run its own "foreign policy" in the past. The central institutions in the organization of the system were the Chamber of Mines and WNLA/NRC (since 1977 TEBA) (Figure 1).
• Throughout the twentieth century at least 40 per cent of the mine workforce was non-South African. This figure peaked in the late 1960s at over 80 per cent. Today it is around 50 per cent. Thus, over the years, hundreds of thousands of male migrants from throughout Southern Africa have spent the greater parts of their working lives in South Africa. Few parts of the sub-continent have been untouched by the involvement of young male migrants in mine labour in South Africa.

2.5 Table 1 shows the sources of migrants to the mines for the period 1920 to 1990. There are a number of distinctive features to emphasize in these spatial patterns:

• Virtually every country in the SADC region has at one time or another sent migrants to work in the mines. There are three types of supplier:
  1. longstanding suppliers such as Mozambique, Botswana, Lesotho and Swaziland with relatively consistent (or slowly rising) numbers.;
  2. episodic suppliers such as Malawi and Zimbabwe with fluctuating numbers over time;
  3. occasional suppliers such as Zambia, Tanzania and Angola whose labour was once important but is not at present.
• The longstanding suppliers (Mozambique and the BLS countries) are the countries where one might expect that the South African migrant labour system had its biggest impact and which became most dependent on contract employment. Numerous research studies have demonstrated that this is indeed the case. These countries were, and are, firmly integrated into the regional mine labour market. National and household economies of these countries have been, and continue to be, heavily dependent on the system of contract labour. For them, withdrawal or expulsion from the system could be potentially disastrous.
• The main episodic suppliers are Malawi and Zimbabwe. In the case of Zimbabwe, the numbers fell in the 1950s after opposition from white employers in that country and expanded suddenly in the 1970's when South Africa was in desperate search of labour. The Mugabe government withdrew these workers at independence in 1981. In the case of Malawi the numbers rose dramatically for similar reasons in the 1960s and fell just as suddenly in 1974 when Malawi withdrew its workers following a WNLA plane crash that killed 73 miners. The Malawians were thrown out of South Africa in 1988 following false accusations that they were responsible for spreading AIDS in South Africa.
• The occasional suppliers such as Tanzania, Zambia and Angola have not supplied labour since the 1960s. Few of the miners then working in South Africa would now be of working age and there is no evidence of a demand for South African mine jobs in those countries. However, from the South African side, a regional labour market should allow South Africa to avail itself of the considerable skills available on the Copperbelt and amongst Zimbabwean miners in that country's industry.

Many of the countries of Southern Africa have thus supplied or continue to supply contract workers for the mines. In historical terms, what was the impact of this involvement on these countries?

2.6 The South African mining industry was the source of some of the central repressive institutions of white domination in South Africa - the migrant labour system, influx controls, single-sex compounds, the colour bar, anti-unionism and low wage policies. Naturally, many South African miners have suffered under this system. As the primary source regions for mineworkers, however, the other states of Southern Africa and their citizens have experienced a disproportionate share of the rural economic impoverishment, social and family disintegration, calamitous health problems, and racial oppression that was endemic to the contract migrant labour system.

2.7 The regional labour market for contract migration has, over the years, been the object of various forms of political intervention designed to change the system:

• The primary intervention was between 1913 and 1930 during the period of the so-called "Tropical Labour Ban." Miners from the region died from pneumonia and other lung diseases died in such numbers on the South African mines that the government imposed a total ban on the recruitment of workers from north of 22degrees south latitude. The effects of this ban and its lifting in the 1930s are clearly reflected in Table 1. Once the ban was lifted the flow of labour from the North (Zimbabwe, Angola, Tanzania, Malawi) immediately increased. One of the major unintended consequences of this ban was that it led to a massive upsurge in informal (clandestine or illegal) migration. This is a point to consider when contemplating the future. So inter-twined are migration for mine and other forms of employment that a reduction in the former invariably leads to an upsurge in the latter.

• The mining industry has consistently argued for the right to choose the best labour from throughout the region. In the past, the old South African government was deeply divided on this issue. The Department of Native Affairs, Bantu Affairs (and now Home Affairs) tended to argue against foreign labour (despite the economic realities) and the other departments (Foreign Affairs, Mines, Agriculture) for foreign labour. Although there were often threats by the apartheid government to expel all non-South Africans, these were never implemented.
• The withdrawal of citizens from the South African mines by newly-independent states. Tanzania, Zambia, Zimbabwe and Angola all adopted this strategy as an anti-apartheid measure immediately after independence. Malawi did so in the 1970s in protest against conditions on the mines. There is still a strong clamour for mine jobs amongst ex-miners in Malawi and the government of Malawi has asked the new South African government to reconsider its ban. Although the easy option would simply be to keep migrants from these countries out of the mines it is clear that in Malawi, at least, the growing flow of informal immigrants is related to the stopping of migration to the mines.

2.8 The central question is whether South Africa wants to or should assume any obligation for the fact that (a) it has had a longstanding and deeply entrenched dependence on the other SADC states for the migrant miners who built its own economy; (b) these source areas are, in a very real sense, a product of and an integral part of the South African and regional economy; and, (c) the past policies and practices of the mining industry and apartheid state have had negative consequences for these areas and their peoples.⁽⁵⁾ South Africa's problems of social and economic upliftment are daunting enough. Why should this be compounded by a sense of obligation to the supplier areas for contract migration and the Southern African region as a whole? Perhaps because the region is in a very real sense a historical product of, even an extension of, South Africa itself. Perhaps also because a failure to do so would have a range of negative consequences for South Africa itself.

3.0 Recent Trends in Mine Migration

3.1 Foreign Labour on the Mines. The most significant fact to note is the resilience of the migrant labour system over the last 25 years despite unprecedented pressure for transformation. Over 90 percent of the industry's African employees are still migrants, living in hostels and visiting their primary place of residence only periodically. Also, there is the continued employment of large numbers of foreign migrants from selected SADC countries. The proportion of foreign miners varies considerably from mine to mine. A more detailed investigation of mine policies towards employing non-South African labour is urgently needed. In the industry as a whole the following points emerge from the data:

• The proportion of non-South African miners in the workforce remained constant at around 40 percent for most of the 1980s but has recently risen to 50 percent (Figure 2).
• Mozambique and Lesotho are the major foreign suppliers of mine labour with much smaller numbers from Swaziland and Botswana. No Malawians have worked officially on the mines since 1989 (Table 2) although over 400 recently applied for permanent residence under the recent miners' amnesty (Table 7).
• The numbers of mine jobs have fallen significantly due to retrenchments since 1987. An estimated 160,000 jobs were lost between 1987 and 1993. Figure 3 shows that many more South Africans than non-South Africans were laid off during this period (by a ratio of 2:1). Mozambique and Swaziland were hardly affected at all by retrenchments. The reasons for this apparent favouring of non-South African miners are not altogether clear and need to be explained by the mining industry.

3.2 Urban Labour. There has been a growing differentiation between South African and foreign miners following the collapse of influx controls. South African miners are no longer employed on annual contracts and recruited in rural areas to which they have to return. As a result, many have been moving to the mining areas with their families. This is shown by what TEBA refers to as the growth of "urban labour" (Figure 4).

Foreign miners have had more limited options and are still largely long-distance migrant workers who are employed on annual contracts and must return home on expiry of contracts. The major change is that in the old days miners could only return home once a year. Now they are able to return home more often. Table 3 shows that for Lesotho miners, the rate of return home is very frequent. Over 60% of miners return home to Lesotho at least once a month with another 25% returning at least once every three months. Since these visits are voluntary rather than forced, this is not the migration behaviour of people who are abandoning their country of origin.

3.3 Deferred pay and remittances These are a crucial element of any system involving migrants. This is a global phenomenon. Migrant workers everywhere are known to remit a large proportion of their earnings to their home countries. Southern Africa is no exception. Remittances have a major impact on home societies. Households with migrant incomes are often much better off than non-migrant households and national economies of poor countries often benefit from this flow of capital. Remittances are also important in dampening the pressures for more outward migration.

In Southern Africa, the remittance behaviour of informal migrants is unknown but is likely to be of considerable importance. In the case of the mining industry there is very good information. Two kinds of remittances are in effect:

(A) Compulsory Deferred Pay. In the case of Mozambique and Lesotho, home country legislation compels migrants to remit 60% and 30% respectively of their earnings home. The amounts involved are large and constitute a significant proportion of the foreign exchange earnings of Mozambique and GNP of Lesotho.

(Table 4).

There is considerable debate about the deferred pay system. On the South African side, neither the Chamber of Mines nor the NUM appear to be in favour of this system. Others argue that the system violates the basic rights of a person to earn and spend their money where they wish. The main proponents of the system are the governments of the home countries. A recent SAMP survey in Lesotho showed that most miners were opposed to the system but that most miners' wives actually favoured it.⁽⁶⁾

This issue needs to be discussed in the Green paper and a resolution of these conflicting interests made.

(B) Voluntary Remittances: TEBA and the banks have instituted efficient systems for voluntary deferment of wages. These are extensively used by workers. TEBA's voluntary systems actually remit more funds to the home countries than the compulsory deferred pay system (Table 5). The implication of this is that the abolition of compulsory deferred pay would not be as disastrous for these countries as is often made out. The primary losers would not be individual households but the governments of those countries who themselves benefit from the interest on deferred pay.

3.4 Growth of Sub-Contracting. The number of workers employed by mine sub-contractors has grown substantially in the last few years - from 5 percent of the goldmines workforce in 1987 to 10 percent (34,733) in 1994. Sub-contracting has also expanded in coal mining; from 5 percent of workers in 1987 to 16 percent in 1994 (Table 6) . In the past, sub-contracting was confined to mine development work such as shaft-sinking and construction. In the last decade mines have progressively out-contracted non-core functions such as catering and cleaning. More recently, sub-contractors have become involved directly in core production.

Contractors have a strong preference for labour from Mozambique and Lesotho. This they obtain through two sources: (a) through recruiting agencies such as TEBA who recruit workers to order on non-renewable contracts of varying length; and (b) through engaging undocumented migrants (often ex-miners) within South Africa.The exact numbers of sub-contract recruits are unknown, although in 1995 TEBA engaged a total of 72,912 workers for non-member mines and contractors (including 18,319 Mozambicans, 11,317 Basotho, and 1,005 workers from Botswana and Swaziland).

The NUM argues that subcontracting "represents a new path to poverty and oppression."⁽⁷⁾ Indeed, the move to sub-contracting appears to be motivated in large part by the drive of employers to circumvent or roll back the gains won by the Union since 1982. Contractors' labour is temporary labour, generally not unionised and exempted from wage rates negotiated between the NUM and the Chamber of Mines. Most workers are paid exclusively at piece work rates. Employees are not covered by mine death and benefit schemes and retirement savings schemes. The employment of low-wage contractors to undertake core production functions has led to conflict with regular miners who are extremely vulnerable to retrenchment.

3.5 Amnesty and Permanent Residence. In October 1995, the South African Cabinet offered permanent South African residence to mineworkers from outside the country who have been working on the mines since 1986 and who had voted in the 1994 election. To date, 26,440 miners have applied for exemptions and a further 20,924 are being processed (47, 364 in total out of an eligible population estimated at around 130,000 by TEBA). These include 8,608 from Mozambique, 31,481 from Lesotho, 3,228 from Swaziland, 3,538 from Botswana, and 449 from Malawi (Table 7). Requests by the NUM to have the amnesty extended have been turned down. In official statistics the number of foreign miners will decline by 25 per cent this year as their status is redefined as South African. A strong case could be made for reopening the amnesty on two grounds: (a) miners were poorly informed about the first amnesty and had insufficient time in which to appkly; and (b) the fact that the miners had to have served 10 years to apply is unjust given the 5 year limitation on SADC country citizens applying for permanent residence. If all miners were to apply for a reopened amnesty, the results would be startling. Some 150,000 non-South African miners would be eligible. This would reduce the de facto foreign component on the mines to under 25 per cent.

What are the likely implications of the amnesty?

The SAMP survey in Lesotho provides some preliminary answers to these questions.⁽⁸⁾ Of the sample of miners interviewed 52% thought they were eligible for permanent residence and another 25.7% were unsure. Overall, however, only 18.7% of the miners said they wished to take permanent residence in South Africa. Only 6.1% would take up South African citizenship. Thus over 93% of Basotho miners do not see a permanent move to South Africa as a desirable outcome. Indeed, 68.3% of the miners who said they would move to South Africa also indicated that they would keep a home in Lesotho. Those who wish to live in South Africa are better educated and have higher incomes than those who wish to remain in Lesotho. On the other hand, they send more money and goods home. Those who prefer Lesotho have substantially more hard assets, including livestock and land, than those who wish to remain in South Africa.

These findings are highly significant for they contest the assumption that all Lesotho citizens cannot wait to move permanently to South Africa and abandon their home country. The vast majority see a permanent move as undesirable. Those with resources and assets in Lesotho are even less likely. Of those who would move, most would continue to maintain contact with Lesotho and would aim to retire there. Lesotho citizens who take up the recent offer of permanent residence and citizenship therefore appear to be doing so for strategic reasons and not for any particular desire to give up their identity as Lesotho citizens and become South Africans.

4.0 Governing Contract Migration: The Two Gates Policy⁽⁹⁾

4.1 Workers from the Southern African region seeking legal access to South Africa are subject to a dual system of control known as the "two gates" policy. The two gates are (a) the Aliens Control Act of 1991 and (b) various bilateral labour agreements between South Africa and the governments of Mozambique, Botswana, Lesotho, Swaziland and Malawi.

The Aliens Act is an omnibus piece of legislation governing all other facets of immigration to South Africa. The Act provides specific exemptions which make legal and administrative room for labour treaties with other countries and temporary employment schemes for non-South African workers. The Act does not, however, prescribe or regulate such schemes. Rather it is permissive in its intent, allowing the Minister of Home Affairs discretion to exempt particular employers and "special recruitment schemes" from the provisions of the Act at his or her own discretion.

4.2 The mines, through their economic power, were able to persuade the governments of the day to give them special dispensations to operate their system outside the normal immigration rules and regulations. To this end, the South African government signed a series of bilateral labour treaties with the major supplier states.

In the past these clauses have allowed particular employers an exemption from immigration legislation and the right to employ non-South Africans under separate terms and conditions than those prescribed by the Act. Not surprisingly it has been the employers with considerable political influence - the mining industry and white commercial farmers - who took advantage of these exemptions and, indeed, for whom they were designed.

The first democratic government of South Africa thus inherited a series of bilateral labour agreements governing mine migration with the governments of Mozambique, Lesotho, Botswana, Swaziland and Malawi. These accords give the South African mining industry privileged recruiting access to non-South African labour outside the terms of the Aliens Act. The accords, although still in force, are all old agreements dating, in their current form, back to the 1960s and early 1970s. The treaties set the terms and conditions of access by contract workers (mainly miners) to the South African labour market. All mine contracts are subject to the conditions laid out in these accords.

4.3 The treaties specify a series of conditions and obligations on the part of both South Africa and the source countries on the following issues:

• recruitment - including right to recruit, length of contract, length of time between contracts, quotas, payment of recruiting fees, the need for written contracts, and provision of facilities for recruiting and processing contracts;
• contracts - including identification of employer and employee, home address of recruit, place of employment, contract length, minimum wage, food and in-kind provision by employer, transport to and from work, and written contracts;
• remittances and deferred pay - provision for compulsory deduction of a proportion of wages and transfer to the home country;
• taxation - exempting contract workers from paying tax in South Africa;
• documentation - including valid contracts, passports and vaccination certificates; endorsement in passport to show purpose and period of entry; employment record books;
• unemployment insurance;
• length of agreements; and
• appointment of labour officials to be stationed in South Africa. The labour offices are nominally responsible for inter alia "protecting the interests of workers", registration of undocumented workers, transfer of money, providing information on conditions of employment; and consulting with the South African government on repatriation of sick or destitute workers.

4.4 The Malawi agreement appears to have lapsed since the expulsion of Malawian miners from the industry in 1986. In other cases, administrative practice has moved beyond the provisions of the original agreement. Administrative amendments (through the signing of diplomatic notes) have been made to the agreements to accommodate, for example, changes in legislation in the home countries of migrants. In some instances, through the agency of the National Union of Mineworkers (NUM) and broader political transformation, treaty provisions have been superseded in practice. The treaties are reportedly being renegotiated at the present time.⁽¹⁰⁾

4.5 All mine recruiting by TEBA falls under, and should be consistent with, the treaties as amended from time to time. These conditions are summarized in the standard annual TEBA contract for foreign miners. These contracts specify certain minimum levels of remuneration (consistent with NUM-COM wage settlements) and working conditions. They also underwrite the system of contract migrancy by allowing for the recruitment of single men only. Miners' dependents cannot accompany their spouses to South Africa and the miners are contractually committed to return home on expiry of the contract. Most miners are on fixed annual contracts. In the case of sub-contracted labour, employer flexibility demands variable contract lengths. The labour accords specify maximum contract lengths for all contract workers.

4.6 The Labour Market Commission argues that the "two gates" policy is discriminatory for two reasons. First, the policy favours mine over other employers. Second, it discriminates against miners who remain perpetual contract workers and are denied the right to more permanent residence and employment, as envisaged by South African immigration legislation. Within the regional context, the bilateral accords also provide different terms of access to South Africa for migrants from traditional mine sending areas and other countries such as Zimbabwe, Zambia and Namibia (with which there are no bilateral agreements). The Commission explicitly calls for the abolition of this "two gates" system" and for a "modernised policy" based on international norms.

4.7 If, as seems desirable, all migrants and immigrants are brought under the aegis of a single new Immigration Act, the next question is whether such an Act would contain exemption clauses of the kind in the Aliens Control Act or whether it will or should itself prescribe conditions for the legal entry of temporary contract workers.

5.0 Policy Scenarios⁽¹¹⁾

This final section of the paper discusses the policy implications of the foregoing analysis in terms of a number of possible scenarios. Such scenario-building helps to clarify both the fundamental principles on which new policies should be based and the various policy options available. A detailed critique of each is not provided here although there is an implicit argument that the final three scenarios, individually or in combination, should be taken the most seriously.

5.1 The Expulsion Scenario

1. This scenario sees the continued employment of any non-South African contract workers as undesirable and would see their immediate expulsion form the country. Thus there would be an immediate suspension of hiring in areas outside South Africa and expulsion of all foreign miners currently employed by the mining industry.
2. Replacement of foreign miners by unemployed South African or retrenched ex-miners.
3. Wages earned within South Africa would remain within the country.
4. The policy would be consistent with the government's stated policy of "South Africans first" in the national labour market.
5. Despite its appeal in certain political quarters as a short-term fix to the unemployment problem this scenario carries grave dangers:
   1. expulsion of foreign miners would reflect badly on the government, attract international opprobrium and be too reminiscent of the actions of the apartheid government;
   2. the action would nullify any possible obligation to foreign workers for their longstanding historical role in building the mining industry and the South African economy, and bearing the brunt of the hardships of the migrant labour system;
   3. the action would have dramatic negative political consequences for South Africa's relations with its neighbours, undermining efforts at regional integration. Economically, the impact on Lesotho, Mozambique and Swaziland would be severe;
   4. the supplier states have limited capacity to reabsorb expelled migrants. Illegal migration to South Africa would dramatically increase;
   5. the mining industry would suffer severe short-term and medium-term disruption to production levels and profitability and severe industrial strife would result on many mines.
6. The summary expulsion option is undesirable since it would rebound negatively on all the major stakeholders. If foreign workers were phased out there would have to be a gradual, phased withdrawal over a period of several years which would allow time for adjustment.

5.2 The Localization Scenario

1. The premise of this scenario is the gradual (partial or complete) withdrawal of all non-South Africans from the mining industry. The underlying rationale is the eventual elimination of the formal migrant labour system in the mining industry.
2. Localization would be planned over a period of years with a final target date and a series of intermediate targets. These targets would be negotiated. Localization could also occur by attrition whereby foreign workers are replaced by South Africans only as they retire or leave the mines.
3. Foreign suppliers could be treated in a differentiated fashion with more generous targets for countries more dependent on migration and with a greater capacity to reabsorb workers.
4. Under this scenario attrition would probably be a better and more easily implementable strategy than targets. There is also an argument for treating Lesotho, in particular, as a "special case" for the following reasons:
   1. mine employment is entrenched throughout Lesotho. Without it there would be a massive in-migration to South Africa's cities;
   2. Lesotho is completely dependent on South Africa and the earnings of Basotho miners remain within the South African economy;
   3. Basotho miners played a major role in the struggle for miners' rights in the 1980s and 1990s; and
   4. Basotho miners represent an unmatched reservoir of skills and mine experience.

5.3 Status Quo Scenario

1. The mining companies would continue to enjoy "special status" under South African immigration legislation outside the conditions that govern other employers. The mining industry would not be subject in its employment practices to existing or new South African immigration legislation.
2. The mining companies would continue to enjoy complete discretion over where they draw their labour from. There would be no restrictions, as at present, on the numbers of foreign miners employed and the balance of South African and non-South African employees. All decisions about labour sourcing would remain exclusively in the hands of the mining companies and be governed purely by their interests. In theory, the whole labour force could be externalized again, reverting to the situation in the 1960s.
3. The "two gates" policy would remain. Employment contracts and conditions would continue to be governed by (perhaps renegotiated and updated) bilateral agreements.
4. Compulsory deferred pay systems would remain in place.
5. Foreign migrants (including new employees and those who have not been granted permanent residence) would continue to be employed on fixed contracts as single workers as before.
6. The case for the status quo option with minimal government regulation will be pushed by the Chamber of Mines. There is a strong argument that many of the features of the status quo are not desirable. They are too restrictive of workers' rights, they consign government to a supporting role and they give the mining industry rights and privileges not accorded to other employers.

5.4 The Regional Labour Market Scenario

1. The scenario recognizes the existence of a regional labour market for mine labour with long historical roots.
2. The scenario gives highest priority to South Africa's historical and future relations within a regional context. It situates the issue not as one of exclusively national interest but within broader considerations of regional integration and positive relations with neighbours.
3. The scenario recognizes that labour movement is one of the most important, if unrecognized, forms of economic linkage within a regional labour market. The termination of such linkages would impact negatively on South Africa and the SADC states. Unlike other forms of integration the benefits of migration flow directly to communities and households that supply the labour.
4. Recognized, manageable labour flows as in the mining industry are preferable to clandestine or illegal movements. The end of the former would produce a dramatic increase in the latter.
5. The regional labour market option scenario could be operationalized through (a) implementation of the the SADC Draft Protocol on Free Movement; or (b) renegotiated bilateral arrangements with supplier states.

5.5 The Guestworker Scenario

1. Government-regulated guestworker schemes are widespread throughout the world wherever employers are in need of labour and governments prefer that they employ legalized rather than illegal foreign workers. The most famous examples are the defunct Bracero plan in the United States and guestworker schemes in Europe. But there are many other functioning examples in Asia and the Middle East. In Canada, such schemes bring Caribbean and Latin American workers to work in the country's agricultural industry, a system which has brought illegal employment above ground.
2. The ILO is in the process of a global survey of such schemes and is currently writing a set of international guidelines for their governance. These could form the basis of a new South African policy on guestworkers.
3. Conditions and regulations governing guestworker schemes would have to be incorporated into a new Immigration Act.
4. The argument for the continuation of regulated contract employment schemes is not based on any desire to perpetuate an exploitative and oppressive system of migrant labour. Rather it recognizes that (a) many contract migrants are migrants not immigrants. They wish to retain their linkages with their country of origin and eventually return there. The recent SAMP survey shows that many migrants who have taken advantage of the offer of permanent residence did so for strategic reasons and because it was the only choice available. Many have no intention of abandoning their home countries; (b) that through proper regulation and management, and observance of the ILO's international guidelines, the worst aspects of the existing system could be eliminated and conditions could be improved and humanized for these workers; and (c) that regulated temporary employment schemes are preferable to the alternative - the employment and exploitation of undocumented migrants by unscrupulous employers. The difference here can be clearly seen in the mining industry where workers recruited under the TEBA umbrella do enjoy treaty protection whereas the growing number of sub-contracted mineworkers do not.

5.6 The Normalization Scenario

1. The mining companies (like all other employers) would have the ability to hire workers from wherever they choose. In principle this would include foreign areas. The companies would have to be accountable to government for those hiring decisions, as they currently are for skilled workers from outside the country. In particular, the future employment of any worker from outside the country would have to be justified in the normal way.
2. The bilateral labour treaties would be abolished and mine employment would come under a single new Immigration Act. .
3. The mechanisms and procedures for hiring non-South African workers would be the same as those governing any other immigrant or temporary resident under the Act. Foreign workers would no longer be restricted to annual contracts. Nor would they have to renegotiate those contracts annually. They would also no longer be compelled to go home when on leave.
4. Foreign workers applying for, or being applied for, would be able to apply for the full range of options available to other foreign immigrants including permanent or temporary residence, work permits, variable work periods and so on. Workers could apply to bring their dependents with them to South Africa. Those on temporary residence permits could eventually qualify for permanent residence and even citizenship.
5. TEBA could continue to act as an employment agency for the mining industry and to present immigration cases to government. But it would no longer be the exclusive means of job entry to the mines. Companies would be free to hire workers directly or through other agencies inside and outside the country and make their own arguments to government for why a particular individual should be admitted.
6. All of the institutional props of migrant labour would disappear including annual contracts, compulsory work-agreements and compulsory deferred pay. Subject to exchange controls no restrictions would be placed on the voluntary repatriation of earnings.
7. All foreign miners would be entitled to the rights and privileges accorded to other temporary or permanent residents of the country as determined by South African law and the new constitution.

6.0 Conclusions

6.1

This paper has focused on the deeply entrenched legacy of contract migration to the South African mines. Whether the large foreign component of the workforce on the mines is necessary or discretionary is a point for debate. Any new policy on mine migration should recognize the fact that without the migrant workers from the supplier states South Africa's economic trajectory would have been very different, that these workers bore a heavy cost in lost lives and social dislocation, that the supplier states remain heavily dependent on mine employment and that any attempt to summarily eject foreign miners would have dire consequences for South Africa and the supplier states.

6.2

The mining industry has always enjoyed "special status" as an employer in South Africa. It has always operated outside normal immigration legislation and has not had to be accountable for its labour sourcing policies like other employers (with the possible exception of commercial farming). The two gates policy is a good example of the special status of this employer. Although the mining industry is of strategic importance there is no a priori reason why it should be treated any differently by government than any other employer.

6.3

The contract labour system which brings foreigners to work in South Africa is in need of review and transformation. The question is which of the various scenarios should constitute the framework within which new policies of transformation are to be debated and developed. All assume very different policy objectives, instruments, and legislative change. The implications and impact of each would also vary considerably and these need to be carefully thought through. The implicit argument in this paper is that the normalization scenario provides the soundest foundation on which to construct a new policy for migrant miners.

6.4

Prior to the formulation and implementation of a policy of normalization, it is recommended that the miners' amnesty be reopened and extended to miners who have worked continuously on the mines since 1991. The amnesty should be accompanied by a propoer education campaign on the benefits and obligations of permanent residence.

1. In parenthesis, one should note the desirability of a clear and consistent set of terms and concepts to describe immigration, immigrants and migrants in all discussion of new policy directions for South Africa. It is desirable that emotive, or misleading, terminology with unsavoury or racist origins be dropped. It is recommended that the terminology used should be consistent with international norms and standards as defined by bodies such as the United Nations and ILO.

2. Jonathan Crush, "Foreign Labour, Temporary Employment and Informal Immigration to South Africa" Cape Town, 1996.

3. This is a highly selective and abbreviated summary of issues raised by the large literature on the evolution of the migrant labour system; see Francis Wilson, Labour Migration to the South African Gold Mines (Cambridge, 1972); Frederick Johnstone, Class, Race and Gold (London, 1976); Alan Jeeves, Migrant Labour in South Africa's Mining Economy (Montreal, 1985); Jonathan Crush et al, South Africa's Labor Empire (Cape Town, 1992); Wilmot James, Our Precious Metal (Cape Town, 1993).

4. Crush et al, South Africa's Labor Empire , p. 1.

5. For example, research currently under way in Zimbabwe, Mozambique, Botswana and Pondoland by the Epidemiology Research Unit in Johannesburg and the ILO reveals shocking levels of occupational disease amongst ex-miners who have worked on the South African mines.

6. Sechaba Consultants, Attitudes Towards Permanent Residence in South Africa Amongst Lesotho Miners Southern African Migration Project, Migration Policy Paper No 2, 1996. Results of a similar survey in Mozambique are awaited.

7. NUM, "Contracting Out", p 154.

8. Sechaba Consultants, Attitudes Towards Permanent Residence.

9. For an extended discussion of this policy see Carol Cooper, "Labour Migration in Southern Africa" Submission to the Labour Market Commission, 1995.

10. The DHA has requested the Department of Labour to investigate amending the accords in order that access to the South African labour market by nationals of treaty countries "can be placed on an even footing" with nationals of non-treaty countries. The Labour Market Commission has since recommended their abolition altogether on the grounds that "they do not conform in many respects to ILO norms and standards, that they are not uniform and that they are outmoded"; see DHA, "Access of Non-South African Nationals to the South African Labour Market" Submission to the Labour Market Commission, File 20/1/B, 1995; and Restructuring the South African Labour Market, p. 177.

11. For further discussion of policy options on contract migration see Jonathan Crush and Wilmot James, eds, Crossing Boundaries: Mine Migrancy in a Democratic South Africa (Cape Town, 1995).

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