access to social services for non-citizens and the ...saflii.org/za/other/books/2011/1.pdf · she...

This book explores the issues of access to particular social services and forms of social security and portability of social protection benefits for migrants living and working in the Southern Africa Develop ment Community (SADC) region. In addition, the research assesses the effectiveness of formal social protection provisions and considers the linkages between citizenship, human rights, empowerment and inclusion with their implications for social protection policies in SADC. Finally, interviews with SADC migrants in South Africa provide perspectives on their social protection strategies, with a focus on informal social protection strategies.

It is hoped that this publication will:

■ make a significant contribution towards evidence-based policy making in SADC as it identifies problems and gaps in social protection for migrants in that region;

■ empower migrants by voicing their challenges and contribute to the regional policy dialogue and understanding of intra-SADC migration, citizenship, inclusion and human rights; and

■ enhance policy-making on social protection for migrants by increasing awareness of and informing country-specific and regional policies on migration, and labour market integration.

EDITORS

Access to Social Services for N

on-Citizens and the Portability of Social Benefits w

ithin the Southern A

frican Developm

ent Comm

unity

Access to Social Services for Non-Citizens and

the Portability of Social Benefits within the Southern African

Development Community

Letlhokwa G

eorge Mpedi

& N

icola Smit

EDITORSLETLHOKWA GEORGE MPEDI & NICOLA SMIT

Letlhokwa George Mpedi is a Co-Director of the Centre for International and Comparative Labour and Social Security Law (CICLASS) and a Professor in the Department of Mercantile Law at the Faculty of Law of the University of Johannesburg. He lectures Labour Law and Social Security Law to LLB, post-graduate and certificate students. Prof Letlhokwa George Mpedi completed his B Juris and LLB degrees at Vista University; the LLM degree in Labour Law at Rand Afrikaans University (now University of Johannesburg) and the LLD degree in Mercantile Law at the University of Johannesburg.

Nicola Smit is a Co-Director of the Centre for International and Comparative Labour and Social Security Law (CICLASS) and a Professor in the Department of Mercantile Law at the Faculty of Law of the University of Johannesburg. She specialises in Labour Law and Security Law and lectures labour law and social security law to LLM, LLB, post graduate diploma and certificate students. She obtained the LLD degree from the Rand Afrikaans University (now University of Johannesburg) as well as the BLC (cum laude) and LLB (cum laude) from the University of Pretoria. She is a co-editor and co-author of various publications, including Social Security: A Legal Analysis (2003), Introduction to Social Security (2004) and Law@work (2008).

Access to Social Services for Non-Citizens and the Portability of Social Benefits

within the Southern African Development Community

EDitorS

Letlhokwa George Mpedi Nicola Smit

Access to Social Services for Non-Citizens and the Portability of Social Benefits within the Southern African Development Community

Published by SUN MeDIA MeTRO under the SUN PReSS imprint

All rights reserved

Copyright © 2011 CICLASS and Southern Africa Trust

This publication is protected by copyright law. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means, including electronic, mechanical, photocopying or recording, without prior written permission of the publisher.

First edition 2011

ISBN 978-0-9870096-1-6

Set in 10/13 Arno Pro

Cover design and page layout by SUN MeDIA Bloemfontein

Published for the Centre for International and Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University of Johannesburg, 21 Chiselhurst Avenue, Auckland Park, 2006

http://www.uj.ac.za/EN/Faculties/law/research/CICLASS/Pages/home.aspx

v

LiSt of CoNtriBUtorS

Prof. Letlhokwa George Mpedi: B Juris (Vista University) LLB (Vista University) LLM (Rand Afrikaans University) LLD (University of Johannesburg). Co-Director: Centre for International and Comparative Labour and Social Security Law, Faculty of Law, University of Johannesburg, South Africa; Professor, Faculty of Law, University of Johannesburg, South Africa. Former Research Fellow: Max Planck Institute for Foreign and International Social Law, Munich, Germany.

Prof. Nicola Smit: BLC (cum laude) (University of Pretoria) LLB (cum laude) (University of Pretoria) LLD (Rand Afrikaans University). Co-Director: Centre for International and Comparative Labour and Social Security Law, Faculty of Law, University of Johannesburg, South Africa; Vice Dean and Professor: Faculty of Law, University of Johannesburg, South Africa.

Dr Loren Landau PhD in Political Science (University of California, Berkeley) MSc in Development Studies (London School of Economics) BA (University of Washington, Seattle); Director: Forced Migration Studies Programme, University of the Witwatersrand, Johannesburg, South Africa.

Dr Ingrid Palmary: PhD in Psychology (Manchester Metropolitan University) Master of Arts in Research Psychology (Cum laude) (University of Natal, Pietermaritzburg) Bachelor of Arts (Honours) (University of Natal, Pietermaritzburg) Bachelor of Arts (Psychology, Sociology) (University of Natal, Pietermaritzburg); Senior Researcher, Forced Migration Studies Programme, University of the Witwatersrand, Johannesburg, South Africa.

Dr Tulia Ackson: LLB (Honours) (University of Dar es Salaam), LLM (University of Dar es Salaam) PhD (University of Cape Town). Associate Dean (Academic), Faculty of Law, University of Dar es Salaam; Advocate of the High Court of Tanzania. Former Postdoctoral Research Fellow, Max Planck Institute for Foreign and International Social Law, Munich, Germany.

Mr Mathias Nyenti: LLB (Honours) (University of Buea, Cameroon) LLM (University of Johannesburg) Doctoral Candidate (UNISA). Research Coordinator: Centre for International and Comparative Labour and Social Security Law, University of Johannesburg, South Africa.

Mr Ericson Dlamini: Diploma in Labour Law (Universities of Botswana and Swaziland) Diploma in Labour Law (University of Namibia) Postgraduate Diploma in Social Security (University of Johannesburg); Labour Commissioner, Kingdom of Swaziland.

Mr Nunkoomar Deerpalsing: Senior Adviser, Ministry of Social Security and National Solidarity, Senior Citizens Welfare and Reforms Institutions, Mauritius.

Mr Bitso Bitso: Postgraduate Diploma in Social Security (University of Johannesburg); Licensed Accountant (Centre for Accounting Studies, Lesotho) Workers Compensation Fund Administrator, Kingdom of Lesotho.

table of Contents

LIST of CoNTRIBUToRS ............................................................................. v

foREWoRD ..................................................................................................... xvii

Chapter 1: ACCESS To SoCIAL SERVICES foR NoN-CITIZENS AND THE PoRTABILITY of SoCIAL BENEfITS WITHIN THE SoUTHERN AfRICAN DEVELoPMENT CoMMUNITY: A SYNTHESIS ........................ 1 Letlhokwa George MPEDI, Nicola SMIT & Mathias NYENTI

1. INTRODUCTION ............................................................................................................... 12. DEFINITIONAL CONTEXT ........................................................................................... 3

2.1 Permanent residents ............................................................................................................... 42.2 Temporary residents .............................................................................................................. 42.3 Refugees ................................................................................................................................... 42.4 Asylum-seekers ....................................................................................................................... 52.5 Irregular/undocumented non-citizens .............................................................................. 53. NON-CITIZENS’ ACCESS TO DIFFERENT SOCIAL SECURITY BENEFITS ............................................................................................................................... 6

3.1 Social assistance ...................................................................................................................... 83.1.1 Permanent residents ............................................................................................................... 83.1.2 Temporary residents .............................................................................................................. 113.1.3 Refugees ................................................................................................................................................. 113.1.4 Asylum-Seekers ....................................................................................................................... 153.1.5 Undocumented non-citizens ................................................................................................ 163.1.6 Exclusions ................................................................................................................................. 173.2 Social insurance and other social services ......................................................................... 173.2.1 Permanent residents ............................................................................................................... 173.2.2 Temporary residents .............................................................................................................. 193.2.3 Refugees and Asylum-seekers .............................................................................................. 213.2.4 Undocumented non-citizens ................................................................................................ 233.2.5 Exclusions ................................................................................................................................. 253.3 Abridged matrices on access to social security by non-citizens in the SADC ............ 264. THE PORTABILITY OF SOCIAL SECURITY BENEFITS IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY: ISSUES, CHALLENGES AND ALTERNATIVES ......................................................................... 28

4.1 Introduction ............................................................................................................................. 284.2 Issues and challenges .............................................................................................................. 304.2.1 Link between portability and other social security coordination principles .............. 304.2.2 Territoriality principle ........................................................................................................... 304.2.3 Taxation .................................................................................................................................... 314.2.4 Administration ........................................................................................................................ 314.2.5 Exportability of currency ...................................................................................................... 324.3 Alternative approaches .......................................................................................................... 324.4 Concluding observations ...................................................................................................... 32

5. THE LEGAL FRAMEWORK FOR THE PROTECTION OF NON- CITIZENS’ SOCIAL SECURITY RIGHTS ................................................................... 33

5.1 Constitutional framework ..................................................................................................... 335.2 Regional (SADC) framework .............................................................................................. 355.2.1 SADC Treaty ........................................................................................................................... 355.2.2 Charter of Fundamental Social Rights in the SADC ....................................................... 375.2.3 SADC Code on Social Security ........................................................................................... 395.2.4 Draft Protocol on the Facilitation of Movement of Persons .......................................... 405.2.5 Protocol on Gender and Development .............................................................................. 435.3 International standards .......................................................................................................... 466. FACTORS AFFECTING NON-CITIZENS’ ACCESS TO SOCIAL

SECURITY IN SADC ........................................................................................................... 496.1 Impact of migration and socio-economic contexts .......................................................... 496.2 Overly strict immigration policies ....................................................................................... 516.3 Limited statutory provision for social security portability ............................................ 537. CONCLUSIONS AND RECOMMENDATIONS ....................................................... 54

7.1 Extension of social security protection to the atypically employed and those working in the informal economy ....................................................................................... 557.2 The need for bi- and/or multilateral social security agreements ................................... 567.3 Restrictions in the legal systems on access to social security for some

non-citizens .............................................................................................................................. 577.4 Ratification and/or enforcement of regional and international standards ................. 577.5 General portability issues ...................................................................................................... 58 BIBLIOGRAPHY .................................................................................................................. 58

Chapter 2: ACCESS To SoCIAL SERVICES foR NoN-CITIZENS AND THE PoRTABILITY of SoCIAL BENEfITS IN LESoTHo ................................. 65 Bitso BITSO

1. MATRICES ON ACCESS TO SOCIAL SECURITY AND (EX)PORTABILITY OF SOCIAL SECURITY BENEFITS ..................................... 652. BACKGROUND ................................................................................................................... 673. FORMS OF SOCIAL SECURITY ................................................................................... 69

3.1 Introduction ............................................................................................................................. 693.2 Old age pension ...................................................................................................................... 693.3 African Pioneer Corps (Pensions) Act 2000 ......................................................................... 703.4 Public servants pension ......................................................................................................... 703.5 Defined contribution pension scheme for public officers .............................................. 703.6 Compensation for occupational injuries and diseases .................................................... 713.7 Maternity and family protection .......................................................................................... 723.8 Severance payment ................................................................................................................. 733.9 Ante- and post-natal care ....................................................................................................... 733.10 Protection of the indigent ..................................................................................................... 743.11 Orphans and Vulnerable Children (OVCs) ...................................................................... 743.12 Rehabilitation of people with disabilities .......................................................................... 753.13 Visually impaired people ....................................................................................................... 75

3.14 Sickness benefits ..................................................................................................................... 763.15 Education ................................................................................................................................. 773.16 Health care ............................................................................................................................... 773.17 Public housing ......................................................................................................................... 783.18 Pensions Scheme (Corporate Bodies) Act of 1979 ............................................................... 793.19 Social assistance for indigent refugees ................................................................................ 803.20 Unemployment Insurance .................................................................................................... 803.21 Conclusion ............................................................................................................................... 804. ACCESS TO FORMS OF SOCIAL SECURITY .......................................................... 81

4.1 Introduction ............................................................................................................................. 814.2 Permanent and temporary residents ................................................................................... 814.3 Undocumented non-citizens ................................................................................................ 814.4 Refugee social security benefit ............................................................................................. 824.5 Asylum seekers ........................................................................................................................ 824.6 Conclusion ............................................................................................................................... 835. (EX)PORTABILITY OF BENEFITS .............................................................................. 83

5.1 Introduction ............................................................................................................................. 835.2 Deferred pay ............................................................................................................................ 845.3 Pensions (compensation related) ........................................................................................ 845.4 Deceased person’s estates ...................................................................................................... 855.5 Corporate bodies pension scheme ...................................................................................... 855.6 Conclusion ............................................................................................................................... 856. CONCLUSIONS AND RECOMMENDATIONS ...................................................... 85 BIBLIOGRAPHY .................................................................................................................. 87

Chapter 3: ACCESS To SoCIAL SERVICES foR NoN-CITIZENS AND THE PoRTABILITY of SoCIAL BENEfITS IN MAURITIUS .............................. 89 Nunkoomar DEERPALSING

1. MATRICES ON ACCESS TO SOCIAL SECURITY IN MAURITIUS ................ 892. OVERVIEW OF FORMS OF SOCIAL SECURITY ................................................... 91

2.1 Background information ....................................................................................................... 912.2 Social services/Forms of social security ............................................................................ 922.3 First pillar – Social assistance schemes and basic universal pensions .......................... 922.3.1 Social aid ................................................................................................................................... 932.3.2 Unemployment Hardship Relief ......................................................................................... 932.3.3 Basic Universal Pensions ....................................................................................................... 932.3.4 Carer’s Allowance ................................................................................................................... 942.4 Second pillar – Contributory schemes ............................................................................... 942.4.1 Contributory scheme under NPA ....................................................................................... 942.4.2 Inflation proofing .................................................................................................................... 952.4.3 Public sector ............................................................................................................................ 962.4.4 Transitional Unemployment Benefit .................................................................................. 962.5 Third pillar – The National Savings Fund (NSF) ............................................................. 972.6 Fourth pillar – Occupational pension schemes ................................................................ 972.7 Fifth pillar – Free services ..................................................................................................... 98

2.8 Housing .................................................................................................................................... 982.9 Health Facilities and Sickness Benefit ................................................................................ 982.10 Education ................................................................................................................................. 993. ACCESS TO SOCIAL SERVICES/SOCIAL SECURITY FOR CITIZENS AND NON-CITIZENS ....................................................................................................... 99

3.1 First pillar ................................................................................................................................. 993.1.1 Social aid ................................................................................................................................... 993.1.2 Unemployment hardship relief ............................................................................................ 1003.1.3 Universal benefits ................................................................................................................... 1003.2 Second pillar ............................................................................................................................ 1003.2.1 Private sector ........................................................................................................................... 1003.2.2 Public sector ............................................................................................................................ 1023.2.3 Transitional Unemployment Benefit .................................................................................. 1033.3 Third pillar – National Savings Fund .................................................................................. 1033.4 Fourth pillar – Private Occupational Pension Schemes ................................................. 1033.5 Fifth pillar ................................................................................................................................. 1033.5.1 Health services ........................................................................................................................ 1033.5.2 Free transport .......................................................................................................................... 1043.5.3 Education facilities ................................................................................................................. 1043.5.4 Subsidies ................................................................................................................................... 1043.6 International migrants, non-citizens, residents and refugees ......................................... 1043.6.1 Refugees and asylum seekers ................................................................................................ 1053.6.2 Residents .................................................................................................................................. 105 BIBLIOGRAPHY .................................................................................................................. 106

Chapter 4: ACCESS To SoCIAL SERVICES foR NoN-CITIZENS AND THE PoRTABILITY of SoCIAL BENEfITS IN SWAZILAND ............................. 107 Ericsson DLAMINI

1. INTRODUCTION: MATRICES ON ACCESS TO SOCIAL SECURITY ......... 1072. OVERVIEW OF FORMS OF SOCIAL SECURITY ................................................... 109

2.1 Social assistance ...................................................................................................................... 1092.1.1 Old age grant ............................................................................................................................ 1092.1.2 Health care ............................................................................................................................... 1092.2 Social insurance ....................................................................................................................... 1092.2.1 Swaziland National Provident Fund ................................................................................... 1102.2.2 Public Service Pensions Fund .............................................................................................. 1102.2.3 Workers’ compensation/occupational injury scheme .................................................... 1112.2.4 Motor Vehicle Accident Fund .............................................................................................. 1112.2.5 Employment-related benefits ............................................................................................... 1123. ACCESS TO SOCIAL SERVICES/SOCIAL SECURITY FOR CITIZENS AND NON-CITIZENS ............................................................................................................ 112

3.1 Introduction ............................................................................................................................. 1123.2 Social assistance ...................................................................................................................... 1123.2.1 Old age grant ............................................................................................................................ 1123.2.2 Health care ............................................................................................................................... 113

3.3 Social insurance ....................................................................................................................... 1133.4 Employment-related sickness benefits ............................................................................... 1133.5 Public housing ......................................................................................................................... 1133.6 Schooling .................................................................................................................................. 1133.7 Conclusion ............................................................................................................................... 1134. (EX)PORTABILITY OF BENEFITS .............................................................................. 114

4.1 Introduction ............................................................................................................................. 1144.2 Public Service Pension Fund ................................................................................................ 1144.3 Swaziland National Provident Fund ................................................................................... 1144.4 Motor Vehicle Accident Fund .............................................................................................. 1144.5 Conclusion ............................................................................................................................... 1155. RECOMMENDATIONS .................................................................................................... 115 BIBLIOGRAPHY .................................................................................................................. 117

Chapter 5: ACCESS To SoCIAL SERVICES foR NoN-CITIZENS AND THE PoRTABILITY of SoCIAL BENEfITS IN TANZANIA ................................ 119 Tulia ACKSON

1. MATRICES SHOWING ACCESS TO SOCIAL SECURITY IN TANZANIA .. 1191.1 Introduction ............................................................................................................................. 1191.2 Matrix A: Access to social services/social security .......................................................... 1201.3 Matrix B: Access to social services/social security .......................................................... 1201.4 Matrix C: (Ex)portability of benefits ................................................................................. 1212. OVERVIEW OF SOCIAL SERVICES/FORMS OF SOCIAL SECURITY ......... 121

2.1 Introduction ............................................................................................................................. 1212.2 Social assistance benefits ....................................................................................................... 1212.3 National and occupational old age pension ...................................................................... 1232.4 Disability pension ................................................................................................................... 1242.5 Health care (including health insurance) .......................................................................... 1252.6 Sickness benefits ..................................................................................................................... 1262.7 Public housing ......................................................................................................................... 1262.8 Schooling/education ............................................................................................................. 1273. ACCESS TO SOCIAL SERVICES/FORMS OF SOCIAL SECURITY FOR CITIZENS AND CATEGORIES OF NON-CITIZENS ........................................... 127

3.1 Introduction ............................................................................................................................. 1273.2 Access to social security in Tanzania .................................................................................. 1273.2.1 Citizens ..................................................................................................................................... 1273.2.2 Permanent residents ............................................................................................................... 1303.2.3 Temporary residents .............................................................................................................. 1303.2.4 Refugees and asylum seekers ................................................................................................ 1303.2.5 Undocumented migrants ...................................................................................................... 1314. PORTABILITY OF SOCIAL SECURITY BENEFITS FOR NON-CITIZENS FROM TANZANIA .............................................................................................................. 131

4.1 Introduction ............................................................................................................................. 1314.2 Exportation of benefits abroad ............................................................................................ 1314.3 Conclusion ............................................................................................................................... 132

5. CONCLUSIONS, WITH REFERENCE TO: (I) MAIN PROBLEMS, GAPS AND SHORTCOMINGS; (II) RECOMMENDATIONS AND PRIORITIES .. 132

5.1 Introduction ............................................................................................................................. 1325.2 Conclusion ............................................................................................................................... 1335.3 Recommendations ................................................................................................................. 133 BIBLIOGRAPHY .................................................................................................................. 134

Chapter 6: CITIZENSHIP, HUMAN RIGHTS, EMPoWERMENT AND INCLUSIoN, AND THE IMPLICATIoNS foR SoCIAL PRoTECTIoN AND SoCIAL SECURITY HARMoNISATIoN/CooRDINATIoN PoLICIES IN SADC 137 Ingrid PALMARY & Loren B. LANDAu

1. INTRODUCTION ............................................................................................................... 1372. CONCEPTUALISING SOCIAL PROTECTION ...................................................... 139

2.1 Background .............................................................................................................................. 1392.2 Introducing vulnerability ...................................................................................................... 1412.3 Factors specific to developing contexts .............................................................................. 1442.4 Rights-based and transformative approaches to social protection ............................... 1452.5 Social protection for migrants in South Africa ................................................................. 1473. LEGAL FRAMEWORKS FOR SOCIAL PROTECTION OF MIGRANTS IN SOUTH AFRICA .................................................................................................................. 152

3.1 Outline of the relevant laws .................................................................................................. 1523.2 Extent of protection offered ................................................................................................. 1533.3 Jurisprudence from Constitutional Court ......................................................................... 1543.3.1 Right to social security and education ................................................................................ 1543.3.2 Labour rights ........................................................................................................................... 1543.4 Gaps in existing laws .............................................................................................................. 155 BIBLIOGRAPHY .................................................................................................................. 157

Chapter 7: INTERVIEW of SADC MIGraNTS IN SoUTH AfRICA oN THEIR oVEraLL SoCIAL PRoTECTIoN STraTEGIES, WITH A foCUS oN INfoRMAL PRoTECTIoN STraTEGIES ................................................... 159 Ingrid PALMARY & Loren B. LANDAu

1. ACCESS TO SOCIAL PROTECTION FOR MIGRANTS IN SOUTH AFRICA 1592. SECTION 1: A BRIEF PROFILE OF MIGRANTS IN SOUTH AFRICA ........... 159

2.1 How many are coming and where are they going? ........................................................... 1602.2 Spatial distribution ................................................................................................................. 1622.3 Who are they and what do they do? ................................................................................... 1662.4 Reasons for migration and documentation type .............................................................. 1672.5 Initial conclusion .................................................................................................................... 1693. SECTION 2: MIGRANT VULNERABILITY: ARE MIGRANTS MORE VULNERABLE THAN SOUTH AFRICANS AND TO WHAT? .......................... 170

3.1 Income ..................................................................................................................................... 1703.2 Household composition ........................................................................................................ 1723.3 Food security ........................................................................................................................... 1743.4 Housing and living conditions ............................................................................................. 177

3.5 Health access: A case study of HIV/AIDS ........................................................................ 1783.6 Experiences of violence ......................................................................................................... 1833.7 Initial conclusions ................................................................................................................... 1864. SECTION 3: HOW DO MIGRANTS COPE WITH SHOCKS? ............................ 187

4.1 Coping with illness ................................................................................................................. 1874.2 Coping with food insecurity and poverty .......................................................................... 1884.3 Coping with crime and violence .......................................................................................... 1904.4 Migration as a coping strategy .............................................................................................. 1924.5 Initial conclusions ................................................................................................................... 1925. SECTION 4: CONCLUSIONS ........................................................................................ 193

Appendix 1: QUALITATIVE STUDY of MALAWIAN MIGraNTS IN JoHANNESBURG ..............................................................................................195

1. INTRODUCTION ............................................................................................................... 1951.1 Background and objectives ................................................................................................... 1952. RESEARCH qUESTIONS ................................................................................................ 1963. METHODOLOGY ............................................................................................................... 1964. DEFINITION OF SOCIAL PROTECTION ............................................................... 1975. CONCEPTUAL FRAMEWORK ..................................................................................... 202

5.1 Socio-economic vulnerability of Migrants ........................................................................ 2025.2 Social Protection regime in South Africa ........................................................................... 2045.3 Social Protection regime in Malawi .................................................................................... 2075.4 Hagemejer’s typology ............................................................................................................ 2086. FINDINGS AND ANALYSIS ............................................................................................ 209

6.1 General information ............................................................................................................... 2096.2 Residence Status ..................................................................................................................... 2116.3 Reasons for migration ............................................................................................................ 2126.4 Duration of stay (actual and intended) .............................................................................. 2136.5 Access to employment and conditions of work ................................................................ 2146.6 Access to health care .............................................................................................................. 2176.7 Access to education ................................................................................................................ 2196.8 Access to housing .................................................................................................................... 2206.9 Social assistance grants/provisions ..................................................................................... 2226.10 Social protection in situations of desperate need ............................................................. 2246.11 Remittances and investments ............................................................................................... 2246.12 Gender spread ......................................................................................................................... 2256.13 General standard of living ..................................................................................................... 2257. CONCLUSION ..................................................................................................................... 2268. RECOMMENDATIONS .................................................................................................... 227 BIBLIOGRAPHY .................................................................................................................. 230

Appendix 2: CoDE oN SoCIAL SECURITY IN THE SADC .............................................. 233 PREAMBLE ............................................................................................................................ 233 ARTICLE 1: DEFINITIONS ............................................................................................. 233 ARTICLE 2: PRINCIPLES UNDERLYING THE PROVISIONS OF THE CODE ....................................................................................................................................... 234

ARTICLE 3: PURPOSES .................................................................................................... 234 ARTICLE 4: THE RIGHT TO SOCIAL SECURITY ................................................ 235 ARTICLE 5: SOCIAL ASSISTANCE, SOCIAL SERVICES AND SOCIAL ALLOWANCES ..................................................................................................................... 235 ARTICLE 6: SOCIAL INSURANCE ............................................................................... 235 ARTICLE 7: HEALTH ........................................................................................................ 236 ARTICLE 8: MATERNITY AND PATERNITY .......................................................... 237 ARTICLE 9: DEATH AND SURVIVORS ..................................................................... 237 ARTICLE 10: RETIREMENT AND OLD AGE .......................................................... 237 ARTICLE 11: UNEMPLOYMENT AND UNDER-EMPLOYMENT .................. 238 ARTICLE 12: OCCUPATIONAL INJURIES AND DISEASES ............................. 238 ARTICLE 13: GENDER ...................................................................................................... 239 ARTICLE 14: PEOPLE WITH DISABILITIES ........................................................... 239 ARTICLE 15: FAMILY PROTECTION ......................................................................... 240 ARTICLE 16: CHILDREN AND YOUNG PERSONS ............................................. 240 ARTICLE 17: MIGRANTS, FOREIGN WORKERS AND REFUGEES .............. 240 ARTICLE 18: SPECIAL AND COLLECTIVE CONTINGENCIES ..................... 241 ARTICLE 19: PREVENTION AND INTEGRATION .............................................. 241 ARTICLE 20: SOCIAL PROTECTION FRAMEWORK ......................................... 242 ARTICLE 21: IMPLEMENTATION AND MONITORING .................................. 242

Appendix 3: CHARTER of fUNDAMENTAL SoCIAL RIGHTS IN SADC ...................... 245 PREAMBLE ............................................................................................................................ 245 ARTICLE 1: DEFINITIONS ............................................................................................. 245 ARTICLE 2: OBJECTIVES OF THE CHARTER ....................................................... 246

ARTICLE 3: BASIC HUMAN RIGHTS AND ORGANISATIONAL RIGHTS .................................................................................................................................... 246

ARTICLE 4: FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING ....................................................................................................................... 247 ARTICLE 5: CONVENTIONS OF THE INTERNATIONAL LABOUR ORGANISATION ............................................................................................ 248 ARTICLE 6: EqUAL TREATMENT FOR MEN AND WOMEN ......................... 248 ARTICLE 7: PROTECTION OF CHILDREN AND YOUNG PEOPLE ............ 248 ARTICLE 8: ELDERLY PERSONS ................................................................................. 249 ARTICLE 9: PERSONS WITH DISABILITIES .......................................................... 249 ARTICLE 10: SOCIAL PROTECTION ........................................................................ 250 ARTICLE 11: IMPROVEMENT OF WORKING AND LIVING CONDITIONS ...................................................................................................................... 250

ARTICLE 12: PROTECTION OF HEALTH, SAFETY AND ENVIRONMENT ................................................................................................................... 250ARTICLE 13: INFORMATION, CONSULTATION AND PARTICIPATION OF WORKERS ....................................................................................................................... 251

ARTICLE 14: EMPLOYMENT AND REMUNERATION ........................................ 251 ARTICLE 15: EDUCATION AND TRAINING ........................................................... 252 ARTICLE 16: IMPLEMENTATION OF THE CHARTER ....................................... 252

ARTICLE 17: ENTRY INTO FORCE ............................................................................. 252 ARTICLE 18: AMENDMENTS OF THE CHARTER ................................................ 252

Appendix 4: PEER REVIEW REPoRT 1 ............................................................................... 2551. A BRIEF ASSESSMENT OF THE BOOK AND ITS CONTRIBUTION AS A RESEARCH OUTPUT ................................................................................................... 2552. AN INDICATION THAT THE BOOK DISSEMINATES ORIGINAL RESEARCH AND NEW DEVELOPMENTS IN THE RELEVANT FIELD AROUND THE WORLD ................................................................................................... 2563. AN INDICATION THAT THE TARGET AUDIENCE OF THE BOOK ARE SPECIALISTS/PEERS IN THE RELEVANT FIELD AND THAT IT IS NOT MERELY A TEXTBOOK OR A POPULAR BOOK INTENDED FOR THE GENERAL PUBLIC .................................................................................................. 2564. ARE THERE ANY SUGGESTED IMPROVEMENTS/REVISIONS NECESSARY TO THE MANUSCRIPT? ...................................................................... 256

Appendix 5: PEER REVIEW REPoRT 2 ............................................................................... 2571. A BRIEF ASSESSMENT OF THE BOOK AND ITS CONTRIBUTION AS A RESEARCH OUTPUT ................................................................................................... 2572. AN INDICATION THAT THE BOOK DISSEMINATES ORIGINAL RESEARCH AND NEW DEVELOPMENTS IN THE RELEVANT FIELD AROUND THE WORLD ................................................................................................... 2583. AN INDICATION THAT THE TARGET AUDIENCE OF THE BOOK IS SPECIALISTS/PEERS IN THE RELEVANT FIELD AND THAT IT IS NOT MERELY A TEXTBOOK INTENDED FOR THE GENERAL PUBLIC ............ 2584. ARE THERE ANY SUGGESTED IMPROVEMENTS/REVIEWS NECESSARY TO THE MANUSCRIPT? ...................................................................... 258

xvii

forEWorD

This publication stems from contributions to a project on “Access, portability and inclusion to social protection for migrants from the Southern African Development Community (SADC)”. The project was made possible through a partnership with the Southern Africa Trust. The views expressed herein do not necessarily represent that of the trust or its associates (www.southernafricatrust.org). The project was jointly undertaken by the Centre for International and Comparative Labour and Social Security Law, Faculty of Law, University of Johannesburg; the World Bank (Human Development Network – Social Protection and Labour Unit); and the University of Sussex – UK (Institute of Development Studies). This study explores the issue of access to particular social services and forms of social security and portability of social protection benefits for migrants living and working in the SADC region. In addition, the research assesses the effectiveness of formal social protection provisions and considers the linkages between citizenship, human rights, empowerment and inclusion with their implications for social protection policies in SADC. Finally, interviews with SADC migrants in South Africa provide perspectives on their overall social protection strategies, with a focus on informal social protection strategies.


make a significant contribution towards evidence-based policy making in SADC as it ��identifies problems and gaps in social protection for migrants in that region;empower migrants by representing their voice and contribute to the regional policy ��dialogue and understanding of intra-SADC migration, citizenship, inclusion and human rights; and enhance policy making on social protection for migrants by increasing awareness of ��and informing country-specific and regional policies on migration, and labour market integration.

We are indebted to the Southern Africa Trust for its generous financial support of the research project. We also wish to thank our project partners, especially Dr Rachel Sabates-Wheeler of the Institute of Development Studies (University of Sussex – UK), as well as Mr Johannes Koettl and his colleagues at the World Bank (Human Development Network – Social Protection and Labour Unit) for their support in the implementation of the research project. Our thanks go to the authors of the respective chapters and the project workshop participants. We are also grateful to the research staff of the Centre for International and Comparative Labour and Social Security Law, in particular Mr Mathias Nyenti, Ms Lydia Apon, Mr Coffie Wabo and Mr Patrick Madube for their assistance during the course of the project and the preparation of this publication.

It should be noted that the opinions expressed in this publication are essentially those of the authors of the chapters, who participated in the research project. Therefore, they also do not represent in any sense the views of the Centre for International and Comparative

xviii

Labour and Social Security Law, the University of Johannesburg, the University of Sussex or the World Bank.

Letlhokwa George Mpedi and Nicola SmitEditors

Johannesburg, December 2011

ChAptEr 1

ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE

portABiLitY of SoCiAL BENEfitS WithiN thE SoUthErN AfriCAN

DEVELopMENt CoMMUNitY: A SYNthESiS

Letlhokwa George MPEDI, Nicola SMIT & Mathias NYENTI1

1. iNtroDUCtioN

The objective of the research was to explore the access to particular social services or forms of social security and the portability of benefits for international migrants living and working in Angola, Lesotho, Madagascar, Mauritius, Mozambique, Swaziland, Tanzania and Zimbabwe. Due to language constraints in Angola, Madagascar and Mozambique,2 and the political and economic situation in Zimbabwe, this objective proved difficult. The research, however, draws on an earlier World Bank study on the same theme, but which focused on five other countries.3 This research therefore reflects the position in nine Southern African Development Community (SADC)4 countries, including both migrant-sending and migrant-receiving countries. Therefore, although it does not cover the entire region, the study is representative of SADC-wide experiences.

1 The authors wish to thank CICLASS researchers Lydia Apon, Patrick Madube and Dieudonne Wabo for their research assistance.

2 Angola and Mozambique are Portuguese-speaking countries; while Madagascar is French-speaking.

3 The World Bank study on “social protection for intra-SADC migrants: Access, portability and inclusion” (2007) focused on Botswana, Malawi, Namibia, South Africa and Zambia.

4 The South African Development Community is made up of the following 15 countries: Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

2 ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS WithiN thE SoUthErN AfriCAN DEVELopMENt CoMMUNitY

Map of the Southern African development community countries

Source: Southern African Development Community – accessed at http://www.sadc.int

The research explores the following issues:

Overview of social services and other forms of social security:�� 5 Each country study presents an overview of the following, namely social assistance,6 social insurance (national and occupational old-age and disability pension, unemployment benefits, health care (including health insurance) and sickness benefits),7 public housing, and schooling that are available in the host country.

5 Social security refers to public and private, or mixed public and private measures designed to protect individuals and families against income security caused by contingencies such as unemployment, employment injury, maternity, sickness, invalidity, old age and death. Conceptually, social security includes social insurance, social assistance and social allowances (see article 1(5) of the Code on Social Security in the SADC, 2007).

6 Social assistance is a form of social security which provides assistance in cash or in kind to persons who lack the means to support themselves and their dependants. Social assistance is provided either on a universal or means-tested basis to those who are not covered by any other form of social security and is funded from government revenues. Its objective is to alleviate poverty through, among other things, the provision of minimum income support (see article 1(2) of the Code on Social Security in the SADC 2007).

7 Social insurance is a form of social security designed to protect income-earners and their families against a reduction or loss of income as a result of exposure to risks impairing a person’s capacity to earn income. Social insurance is contributory, with contributions from employers, employees, self-employed persons or other contributors, depending on the nature of the scheme. Social insurance is aimed at achieving a reasonable level of income maintenance (see article 1(3) of the Code on Social Security in the SADC 2007).

Seychelles

Lesotho

Swaziland

Mozambique

Botswana

Namibia

Angola

Zimbabwe

Zambia

MalawiTanzania

DemocraticRepublic of

Congo

Madagascar

South Africa

Mauritius

3ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS WithiN thE SoUthErN AfriCAN DEVELopMENt CoMMUNitY: A SYNthESiS

Access to these social services and other forms of social security for citizens and ��categories of non-citizens: The country studies describe access to these social security measures for the following categories of persons: citizens, permanent residents, temporary residents, refugees, asylum-seekers, and undocumented migrants. Portability of certain benefits: The country studies also investigate to what extent and ��under what conditions acquired social security benefits can be exported abroad, in particular old-age pension and healthcare (including health insurance) benefits, but also sickness and disability benefits.

The aim of the country studies is not to explore exclusively the legal provisions for access and portability, but to assess how these provisions are implemented and to identify gaps. Hence, the research does not result in a fully-fledged legal analysis, but focuses on the practicability of such provisions, assesses the effectiveness of legal provisions, and identifies main problems. It also identifies the forms of social security to which non-citizens have or should have access; identifies the forms of social security that, in practice, non-citizens are able to access; identifies gaps and shortcomings in the formal social security system as far as non-citizens are concerned; and also provides recommendations and priorities aimed at improving social security access for non-citizens.

2. DEfiNitioNAL CoNtEXt

Non-citizens are often projected as a homogeneous group in a particular country, inclu-ding basically anyone without citizenship of the country of residence. However, it is important to note that there are various categories of non-citizens, such as permanent residents; temporary residents (including migrant workers, students and tourists); refugees and asylum-seekers; and irregular or undocumented non-citizens. Most SADC countries differentiate non-citizens according to their immigration status and/or purpose of entry. Access is also granted for a certain or defined period of time. The categorisation of non-citizens is deemed necessary as a result of restrictive immigration and legal frameworks in SADC. A non-citizen’s status in a country as well as his or her rights and responsibilities depend on the nature of, and endorsement on his or her residence permit.

In Malawi, for example, non-citizens are classified as either legal or illegal/clandestine. There are four kinds of legal immigrants in Malawi: Permanent Resident Permit (PRP) holders, Business Resident Permit (BRP) holders, Temporary Resident Permit (TRP) holders, and Student Permit (SP) holders. In South Africa, non-citizens are grouped under permanent residents, temporary residents, refugees, asylum-seekers and undocumented migrants. Mauritius, on the other hand, makes no distinction between


temporary and permanent residents, as these two categories are generally termed “residents”.8 Migrant workers, non-citizen students and holders of a permanent residence permit are all considered residents. The length of residence and the immigration status of an applicant will determine the rights and obligations of non-citizens. Mauritius does not grant refugee or asylum status, with the result that there are no refugees or asylum-seekers in that country.

2.1 permanent residents

A permanent resident is a non-citizen who has been granted permission to reside in the country indefinitely. Non-citizens who have acquired permanent residence status are on the whole afforded the same treatment accorded to nationals of that state. In South Africa, for example, a permanent resident has all the rights contained in the Bill of Rights9 except those rights explicitly reserved for citizens, such as political rights,10 the right to enter, to remain in and to reside anywhere in the Republic of South Africa, the right to a passport,11 the right to choose a trade, occupation or profession freely12 and the right to gain access to land on an equitable basis.13

2.2 temporary residents

A temporary resident is a non-citizen who has been granted permission to enter and/or reside in a country for a definite period of time. In South Africa, there are various categories under which a non-citizen may get temporary residence. The following permits are relevant: Visitors Permit, Diplomatic Permit, Study Permit, Treaty Permit, Business Permit, Crew Permit, Medical Treatment Permit, Relative’s Permit, Work Permit, Retired Person Permit, Corporate Permit, Exchange Permit, and Asylum Permit.14

2.3 refugees

A refugee is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality

8 See the (Mauritius) Immigration Act RL 3/87 of 17 May 1973.9 Chapter 2 of the Constitution of the Republic of South Africa, 1996 (hereinafter the South African

Constitution). 10 Political rights in s 19 of the South African Constitution.11 S 21(3) and (4) of the South African Constitution.12 S 22 of the South African Constitution.13 S 25(5) of the South African Constitution.14 S 11-23 of the (South African) Immigration Act 13 of 2002.


and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.15

In most SADC countries, special arrangements exist with regard to refugees.16 In the case of South Africa, refugees in principle enjoy full legal protection, which includes the rights set out in Chapter 2 of the Constitution (except the rights reserved specifically for citizens).17 Persons who have obtained refugee status therefore qualify for constitutionally entrenched socio-economic rights in terms of section 27 of the Constitution, amongst which are the right to access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.18 Refugees are also allowed to undertake employment, which grants them access to occupational social security schemes.19

2.4 Asylum-seekers

An asylum-seeker means a person who is seeking recognition as a refugee, or whose refugee status has not yet been confirmed. Since their status is yet to be determined, asylum-seekers cannot enjoy the rights accorded to recognised refugees. They are generally only provided assistance in the case of an emergency, such as health care.

2.5 irregular/undocumented non-citizens

An irregular or undocumented non-citizen is a non-citizen who is in a country without permission to reside in such country or who is in contravention of the country’s immigration law. In most countries, such non-citizen would therefore be considered as an illegal foreigner. As a result of this status such person would be arrested and deported.20

15 Article 1(a) of the united Nations Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967).

16 Fourteen SADC countries have ratified the United Nations Convention Relating to the Status of Refugees 1951, with Mauritius being the only non-signatory.

17 S 27(b) of the (South African) Refugees Act 130 of 1998.18 S 3(a) of the (South African) Refugees Act defines people who qualify for refugee status as those

persons who have fled their own country fearing persecution by reason of their race, religion, nationality, political opinion or their membership of a particular social group. Section (3)(b) mentions certain other categories of persons, namely people who have fled their own country owing to external aggression, occupation, foreign domination or events seriously disturbing public order. According to s 3(c) dependants of those who have been granted refugee status also qualify for refugee status.

19 This is the case e.g. in South Africa and Tanzania. See generally Centre for International and Comparative Labour and Social Security Law (CICLASS) “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): South Africa Country Report” (A Report to the World Bank, 2007); and Ackson, T .“Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Tanzania Country Report” (A Report to the Southern Africa Trust, 2009).

20 See e.g. ss 32 and 33 of the (South African) Immigration Act.


3. NoN-CitiZENS’ ACCESS to DiffErENt SoCiAL SECUritY BENEfitS

The status of a non-citizen will to a large extent determine how he or she is treated in a particular country’s social security system. Since entitlement to social security is usually related to periods of employment or contributions or residency, non-citizens often face difficulties. They risk the loss of entitlements to social security benefits in their country of origin due to their absence, and may at the same time encounter restrictive conditions in the host country with regard to their coverage by the national social security system.21

In almost every SADC country, a non-citizen’s right of access to social security depends on his or her nationality, immigration status, length of residence or some other condition. Non-citizens are mostly excluded as a result of the fact that most social security systems are territorial and nationality-based. This implies that there is a loss of entitlement when an individual crosses borders.22 In many cases, a person’s nationality or citizenship and immigration status are important eligibility criteria for social security. This applies to all social assistance benefits and certain branches of social insurance. National social security legislation often contains provisions, which adversely affect social security rights of non-citizen migrants. For example, such conditions may exclude foreigners from the personal scope of application of the social security schemes.

As mentioned earlier, Mauritius makes no distinction between temporary and permanent residents, as these two categories are generally termed residents.23 Migrant workers, non-citizen students and holders of a permanent residence permit are all considered residents. However, certain restrictions still apply. The length of residence and the immigration status of an applicant will determine the rights and obligations of non-citizens. In addition, Mauritius does not grant refugee or asylum status. As regards social aid, regulation 3(1) of the Social Aid Regulation24 provides that social aid is payable to a citizen of Mauritius residing in the country. On the other hand, section 4 of the Deportation Act25 provides that the minister in charge of defence and internal security may require a destitute person who “does not belong to Mauritius” and “who is, or is likely to be, a charge upon public funds” to be deported and not to be allowed to enter the country. Social aid is therefore not payable to non-citizens. The Unemployment Hardship Relief, which is conceptualised on

21 Baruah, N. et al Handbook on Establishing Effective Labour Migration Polices in Countries of Origin and Destination OSCE/ IOM/ILO, Vienna, 2006, 153-154.

22 Olivier, M. “Acceptance of social security in Africa” Paper presented at the 5th ISSA Africa Regional Conference on Social Security, Lusaka, Zambia, 10-14 August 2005, 15.

23 See the (Mauritius) Immigration Act RL 3/87 of 17 May 1973.24 (Mauritius) Social Aid Regulation of 1984.25 (Mauritius) Deportation Act of 1968.


the same principles as those for social aid, is only payable to a citizen of Mauritius residing in the country. Therefore, it is also not payable to non-citizens.26

Regarding Universal (Social Assistance) Benefits, regulation 3(1) of the National Pensions (Non-Contributory Benefits) Regulations27 provides that “no claim shall be entertained unless the claimant is residing in Mauritius”. Under this Regulation, the non-contributory universal benefits are payable to citizens as well as to non-citizens subject to certain residence qualifications.28 With regard to social insurance, regulation 3 of the National Pensions (Non-Citizens and Absent Persons) Order 29 provides that all non-citizens who have less than two years’ residence in Mauritius are not entitled to become insured persons under the National Pensions Scheme although they may be in possession of a valid work permit and are lawfully employed. Such persons do not pay contributions to the National Pension Fund (NPF) and are therefore not entitled to any benefit under this scheme. Non-citizens with a valid work permit who qualify to become insured persons under the NPF after two years’ residence in Mauritius are required under the law, along with their employers, to pay contributions to the NPF at the same rates as citizens. In such cases, these non-citizens become entitled to the same benefits under the scheme as any other citizen employed in the private sector.30

The Mauritian Transitional Unemployment Benefit scheme applies to redundant workers of the private sector. In theory, the scheme would apply to all redundant workers, including those non-citizens who are employed under a valid work permit. In practice, it is most likely that such redundant non-citizens would not be covered under the scheme, as the issue of a work permit is conditional on the employer taking responsibility for all foreign workers during the whole period for which the work permit is issued. Employers are required under conditions attached to the issue of work permits to repatriate foreign workers for whom work is no longer available or who are unwilling to continue to work in accordance with the terms of the contract they have signed or for any other reason.

26 Deerpalsing, N. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC) – Mauritius Country Report” (A Report to the Southern Africa Trust, 2009) 14.

27 (Mauritius) National Pensions (Non-Contributory Benefits) Regulations of 1977.28 ibid. A non-citizen must have resided in Mauritius for at least fifteen years in aggregate since his or

her fortieth birthday, three of those fifteen years being immediately before his or her claim. A citizen under the age of seventy must have resided in Mauritius for at least twelve years in aggregate since his or her fortieth birthday, three of those fifteen years being immediately before his or her claim. There is no residence qualification for a citizen having attained the age of seventy. As far as the Basic Widow’s Pension is concerned, where both spouses are non-citizens, the widow must have resided in Mauritius for at least five years in aggregate in the ten years immediately before the claim, one of those five years being immediately before the claim. In all other cases, no residence qualification is required for payment of this pension. With regard to Invalidity and Orphan Basic Pensions, a non-citizen must have resided in Mauritius for at least five years in aggregate in the ten years immediately before the claim.

29 (Mauritius) National Pensions (Non-Citizens and Absent Persons) Order of 1978.30 Deerpalsing ibid 15.


A cash guarantee sufficient to cover the costs of air ticket for repatriation purposes is required from employers who employ foreign workers. Contributions to the National Savings Fund (NSF) are paid in respect of both public officers and private sector employees. The lump sum payable under this scheme is paid directly to the retiree, the redundant worker or to the legal representatives of the deceased worker. As is the case for payment of contributory benefits under the NPS, it is possible for the NPF, which is responsible for the management of this scheme, to pay into the local bank account of a non-citizen any lump sum to which he/she may be entitled. Any amount paid as lump sums can be transferred to the country of residence of a non-citizen.31 Employers of the private sector can employ non-citizens provided a work permit is obtained from the Ministry of Labour in respect of each such employee. In most cases, foreign workers are recruited on a fixed-term contract and are therefore not entitled to join an existing private or occupational pension scheme sponsored by such employers. However, there is no impediment for foreign workers to become a member of such schemes if they are employed on a contract of indefinite duration, as is normally the case for local employees.32

The position in the other SADC countries is addressed in the chapters that follow.

3.1 Social assistance

3.1.1 Permanent residents

Social assistance is mostly limited to citizens and/or permanent residents. In many SADC countries, non-citizens who have acquired permanent residence status are, however, eligible for social protection on the same basis as citizens. In Botswana social assistance is limited to citizens. In Botswana, non-citizens who need assistance are usually assisted under the Programme for Destitute Persons on a temporary basis, for up to six months.33 Deserving individuals are provided with food rations, cash entitlements, access to social services including rehabilitation, provision for funeral expenses and shelter. All categories of destitute persons are exempted from payment of publicly provided services such as medical fees, school fees, water charges, service levy and electricity charges.34

The Orphan Care Programme is a Short-Term Plan of Action on Care of Orphans. The main objective of this strategy is to respond among others to the immediate needs of orphans (food, clothing, education, shelter, protection and care), thereby making them productive citizens and removing them from the poverty trap. Eligibility is open to all

31 ibid 17.32 ibid 17-18.33 Ntseane, D. and Solo, K. “Access to social services for non-citizens and the portability of social

benefits within the Southern African Development Community (SADC): Botswana Country Report” (A Report to the World Bank, 2007) 8.

34 ibid 7-8.


children in Botswana, citizens and non-citizens alike, who lack with regard to basic human needs.35 Healthcare services exist in the country and are subsidised through contributory medical aid schemes. Citizens, permanent residents, migrants, refugees and asylum-seekers are all entitled to these services through various medical aid schemes.36

In some countries, such as Lesotho, legislation is either silent or unclear on the right of access to social security by permanent and temporary residents. In addition, permanent and temporary residents have never attempted to pursue or challenge restrictions on their right to access social security benefits.37 This means the reasons for not accessing these rights have never been revealed.

In Malawi, permanent residents face the same conditions as citizens when it comes to old age pension, disability pension and unemployment benefits. This is also the case with free health care, sickness benefits, public housing and schooling.

Mauritius operates a social security system based on residence. This implies that everyone resident in the country has access to social security, including non-citizens depending on the length of residence and immigration status. (See the limitations discussed above, however.) In addition, no distinction is drawn between temporary and permanent residents, as these two categories are generally termed residents.38

Access to social security in Namibia depends on a non-citizen’s immigration status. For a non-citizen to have access to public social assistance benefits, Namibian citizenship or permanent residence is required. Namibia’s old age pension scheme extends to all individuals aged 60 and above who are citizens or permanent residents. To be eligible for public disability grants an individual must also be a Namibian citizen or permanent resident and must reside in Namibia. Public unemployment benefits are not provided for in Namibia. Public health care is limited to Namibian citizens and permanent residents only. The state hospitals provide subsidised health care even to non-citizens and permanent residents.39 Public housing is restricted to Namibian citizens. Basic education for everyone in Namibia is a constitutional right. Therefore, all categories of persons have access to at least basic education.40

In the case of South Africa, non-citizens who have acquired permanent residence status are eligible for social security on the same basis as South Africans. In other words,

35 ibid 10-12.36 ibid 20.37 Bitso, B. “Access to social services for non-citizens and the portability of social benefits within the

Southern Africa Development Community (SADC): Lesotho Country Report” (A Report to the Southern Africa Trust, 2009) 19.

38 See the (Mauritius) Immigration Act RL 3/87 of 17 May 1973.39 Adongo, J. “Access to social services for non-citizens and the portability of social benefits within the

Southern Africa Development Community (SADC): Namibia Country Report” (A Report to the World Bank 2007) 18.

40 See Article 20 of the Namibian Constitution of 1998.


foreigners with permanent residence status are entitled to the same socio-economic rights as citizens. A permanent resident is defined as the holder of a section 25 permit as defined in the Immigration Act.41 A permanent resident has all the rights, privileges, duties and obligations of a citizen with the exception of those that the Constitution explicitly ascribes to a citizen.42 This, however, was not always the case.

Initially, South African citizenship was an eligibility criterion for assessing social assistance benefits. This position was placed under constitutional challenge in the landmark case of Khosa and others v The Minister of Social Development and others; Mahlaule and others v The Minister of Social Development and others.43 The court adopted a purposive approach to the interpretation of the Bill of Rights. It made a distinction between permanent residents and temporary residents with regard to the right to access social assistance, and found the former to have a stronger link with the country than the latter.44 The court found the provisions excluding permanent residents from social assistance to be unconstitutional. The current position is that permanent residents are entitled to access social assistance in terms of the South African Social Assistance Act.45

In Swaziland, social assistance is accessible only to Swazis. Permanent residents (who have not khonted or obtained citizenship), temporary residents, refugees, asylum-seekers and undocumented migrants cannot access social assistance. In the case of health care, permanent residents, temporary residents, refugees, asylum-seekers, refugees and undocumented migrants have partial access, as they have a right to be treated in the more affordable public health centres and clinics. In addition, they are free to access private and

41 (South Africa) Immigration Act 13 of 2002.42 S 25 of the (South African) Immigration Act 13 of 2002.43 Khosa and Others v The Minister of Social Development and Others; Mahlaule and Others v The

Minister of Social Development and Others 2004 (6) BCLR 569 (CC). The Constitutional Court found that the Constitution expressly provides that the Bill of Rights enshrines the rights of “all people in our country” and in the absence of any indication that s 27(1) is restricted to citizens as in other provisions in the Bill of Rights, the word “everyone” cannot be construed as referring only to citizens (par 47).

44 It found that permanent residents had a stronger link with the country than temporary residents. Permanent residents reside legally in the country and may have done so for a considerable length of time; like citizens, they have made South Africa their home; permanent residents are compelled to return to the country at least once every three years; they have a right to work in South Africa and even owe a duty of allegiance to the state. The court found that, save for political rights; they were for most purposes in the same position as citizens (par 59).

45 S 5(1)(c) of the Social Assistance Act (Act 13 of 2004 as amended) states that a person is entitled to the appropriate social assistance if he or she is a South African citizen or is a member of a group or category of persons prescribed by the Minister, with the concurrence of the Minister of Finance, by notice in the Government Gazette. See also regulations 2(e), 3(a), 6(e), 7(c), 9(1)(b) of the Regulations relating to the application for and payment of social assistance and the requirements or conditions in respect of eligibility for social assistance (Notice No. R. 898 in GG No. 31356 22 August 2008). These provide access for permanent residents to the old age grant, disability grant, child support grant, foster child grant and social relief of distress, respectively.


occupational-based schemes. However, only citizens are covered for the Phalala Fund and the Civil Servants referral scheme.

In Zambia, social assistance is limited to citizens. However, non-citizens are provided emergency assistance. For example, Zambia’s Public Welfare Assistance Scheme (PWAS) provides assistance to non-citizens in cases of natural disasters like floods and droughts and in other extreme cases that would need PWAS intervention.46 Zambia does not have the traditional non-contributory old age pension scheme. The contributory old age pension scheme covers citizens and non-citizens working in Zambia. In addition, there is no comprehensive social health insurance in Zambia. In the past Zambian citizens had free access to health care, but now fees are charged. Therefore, all Zambians pay for health services in public hospitals, except children younger than five years, elderly people above 65 years and pregnant women. Non-citizens and citizens have equal access to health services.

3.1.2 Temporary residents

Malawian temporary non-citizens are not entitled to most of the social services except those provided for in their contracts of employment. They can, however, access the public healthcare system in cases of emergency.47 In South Africa, temporary residents cannot access social assistance, as this is restricted to citizens and permanent residents. The position is similar in Swaziland, where social assistance is restricted to citizens only.48

3.1.3 Refugees

The treatment of refugees in relation to social assistance varies in the different SADC countries. Most refugees in Lesotho are employed and as a result are able to support themselves and their dependants. However, there are some refugees who have no means of income and as result the government of Lesotho has put in place a social assistance benefit package for indigent refugees in the form of free health services obtainable from the public health centres and public hospitals; access to free primary and secondary education from the public and faith-based organisation schools; and a monthly stipend/grant of M400.49 Naturally, the number of people involved is rather small. Refugees who

46 Muyembe, M. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Zambia Country Report” (A Report to the World Bank, 2007) 13.

47 Institute of Policy Research and Social Empowerment (IPRSE) “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Malawi Country Report” (A Report to the World Bank, 2007) 18.

48 Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Swaziland Country Report” (A Report to the Southern Africa Trust, 2009) 9.

49 See Bitso, B. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Lesotho Country Report” (A Report to the Southern Africa Trust, 2009) 20. The Maluti is at par with South Africa’s Rand (about US$ 40).


have lived in Lesotho for at least five years are eligible to apply for full citizenship of the country.50 They must, however, renounce citizenship of with countries of origin in order for their application to be considered, as dual citizenship is not permissible in Lesotho.51 They are given special identity cards in order to enable them to access social security and other benefits.

Refugees are a special group of non-citizens in Malawi, especially in terms of how they are treated. According to Malawi’s Refugee Act,52 refugees are required to stay in camps where support is provided to them with assistance from the United Nations High Commission for Refugees (UNHCR). In the camps, refugees are provided with access to basic education and health services. They are also provided with vocational skills training, including income-generating activities. Refugees are not allowed to work within the formal sector in the country; as such they are not entitled to any employment-related benefits.53

Refugees in Tanzania are allowed to work by virtue of section 32 of the Tanzanian Refugees Act,54 which provides for employability of a refugee on the basis of his or her qualifications. This implies that refugees are also covered by the existing schemes, which cover employees and workers in the private sector – such as the National Social Security Fund (NSSF) and the Parastatal Pension Fund (PPF).

Namibia provides social assistance to refugees and asylum-seekers living at the Osire refugee camp through the UNHCR office in Namibia and its partners. Social assistance to refugees and asylum-seekers includes food rations, domestic provisions, water and sanitation, community services and police protection.55

In South Africa, refugees in principle enjoy full legal protection, which includes the rights set out in Chapter 2 of the Constitution.56 Therefore, refugees qualify for constitutionally entrenched socio-economic rights in terms of section 27 of the Constitution. This includes the right of access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.57 The South African Social

50 Lesotho’s Aliens Control Act of 1966.51 S 41 of the Constitution of Lesotho 1993.52 Malawi’s Refugees Act of 1989.53 Institute of Policy Research and Social Empowerment (IPRSE) “Access to social services for non-

citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Malawi Country Report” (A Report to the World Bank, 2007) 19.

54 Tanzania’s Refugees Act 9 of 1998.55 Adongo, J. “Access to social services for non-citizens and the portability of social benefits within the

Southern African Development Community (SADC): Namibia Country Report” (A Report to the World Bank, 2007) 8-9.

56 S 27(b) of the South African Refugees Act 130 of 1998.57 CICLASS “Access to social services for non-citizens and the portability of social benefits within the Southern

African Development Community (SADC): South Africa Country Report” (A Report to the World Bank, 2007) 27.


Assistance Act58 provides social assistance to South African citizens, non-South African citizens who, prior to 1 March 1996 were recipients of a benefit similar to a grant in terms of any law repealed by section 20 of the Social Assistance Act, and to a member of a group or category of persons determined by the minister.59 The Regulations to the South African Social Assistance Act now include refugees as beneficiaries.60 The policy in South Africa with regard to refugees is that they are not held in camps. Refugee policy allows for mobilisation and local integration of refugees with the implication that they are allowed to settle anywhere in the country.

As mentioned above, the South African Refugees Act guarantees refugees the right to enjoy full legal protection, which includes the rights set out in the Bill of Rights of the Constitution. The Constitutional Court, in union of Refugee Women and others v Private Security Industry Regulatory Authority and others,61 considered the position of refugees in South Africa. It held that refugees who have been granted asylum are a special category of foreign nationals who have the right to remain in South Africa indefinitely. The court likened their position to that of permanent residents with regard to the access of rights and privileges in South Africa, although not in all aspects.62 Refugees are allowed to seek employment, with the exception of certain industries. In the union of Refugee Women case63 the applicants challenged certain sections of the Private Security Industry Regulation Act.64 The Act requires security service providers to register with the Private Security Industry Regulatory Authority (the Authority). Section 23(1)(a) of the Act lists citizenship or permanent residence as a requirement for registration. Despite the provisions of section 23(1)(a), section 23(6) confers upon the Authority the discretion to register any applicant as a security service provider, on good cause shown and on grounds, which are not in conflict with the purpose of the Private Security Industry Regulation Act and the objects of the Authority. The applicants challenged section 23(1)(a) on the basis that it constitutes a violation of the right to equality, and discriminates against them on the basis that they are not citizens or permanent residents. Alternatively, they challenged the validity of the decisions of the Authority.

The court acknowledged that refugees are a vulnerable group in our society and stressed that foreign nationals, including refugees, are not inherently less trustworthy than South

58 13 of 2004.59 With the concurrence of the Minister of Finance, by notice in the Government Gazette. See s 1.60 Regulation 3(a) of the Regulations Relating to the Application for and Payment of Social Assistance and

the Requirements or Conditions in Respect of Eligibility for Social Assistance (published in GG 31356 of 22 August 2008) provides that a person is eligible for a disability grant if he or she is a South Africa citizen, permanent resident or a refugee.

61 union of Refugee Women and fourteen others v Private Security Industry Regulatory Authority 2007 (4) BCLR 339 (CC).

62 ibid par 99.63 ibid.64 Act 56 of 2001.


Africans. However, it held that citizens and permanent residents would be able to more easily prove their trustworthiness for purposes of the Private Security Industry Regulation Act. The court stressed that although section 27(f) of the Refugees Act grants refugees the right to seek employment, section 23(1)(a) of the Security Act limits the refugees’ right to choose employment only to the extent that they may not work in the private security industry. It in no way prevents them from seeking employment in other industries. They may also enter this single excluded industry if they successfully invoke the provisions of section 23(6) of the Private Security Industry Regulation Act or if they acquire permanent resident status. In addition, the court stated that while refugees are fully entitled to work in South Africa, section 22 of the Constitution limits the right to choose a vocation to citizens only. The right to equality was held not to be violated by section 23(1)(a). In essence, the regulatory scheme was found to be narrowly tailored to the purpose of screening entrants to the private security industry rather than constituting a blanket ban on the registration of refugees as private security service providers.

Although subject to some exceptions, refugees are therefore guaranteed the right to seek employment,65 and are also entitled to the same basic health services and basic primary education which South African citizens and permanent residents receive.66 Dependants of refugees who accompanied their beneficiary to South Africa can apply for asylum or the main beneficiary can apply on their behalf.67 It therefore follows that except in limited circumstances, refugees have the right to seek employment in all other sectors. With regard to access to health care, they are entitled to free primary health care on the same basis as citizens and permanent residents and to subsidised non-primary health care in government institutions. Assuming they have the means, they can access the contributory private health system through medical aid. Registered refugees are amongst the categories of persons that are currently eligible for accessing free anti-retroviral (ARV) treatment in the public sector.

Even though refugees legally enjoy all the rights that South Africans do, barring for example the right to vote, it must be stated that in practice state personnel and institutions exercise pervasive discrimination against immigrants and refugees. For example, despite the fact that the South African Refugees Act of 1998 explicitly gives refugees and their children the right to primary education, there is a de facto requirement that migrants pay school fees.68

In Botswana and Zambia, social assistance is limited to citizens. However, non-citizens are provided emergency assistance. In Botswana, non-citizens who need assistance are

65 See the union of Refugee Women case (supra).66 S 27.67 S 33.68 Steinberg, J.A. “Mixed Reception: Mozambican and Congolese Refugees in South Africa” Institute

for Security Studies (ISS) Monograph No 117, June 2005, 30.


usually assisted under the Programme for Destitute Persons on a temporary basis, for up to six months.69

As indicated earlier, under Zambian law refugees have equal rights with citizens.70 Therefore, they are eligible for social assistance. The Public Welfare Assistance Scheme (PWAS) provides assistance to non-citizens in cases of natural disasters like floods and droughts and in other extreme cases, which would need PWAS intervention.71 The UNHCR is responsible for the health fees incurred by refugees.

3.1.4 Asylum-Seekers

Asylum-seekers in Lesotho are regularised to become refugees within a week due to the small numbers of applications received. Asylum-seekers are provided with temporary shelter while they are waiting to be regularised.72

Asylum-seekers are entitled to security and repatriation under social assistance measures in Malawi. They are eligible for public health care if it is an integral part of their protection clause. This is also the case with public schooling. They are, however, eligible for private medical and education services. Undocumented migrants are considered illegal and are therefore not eligible for any form of social security.73

Tanzania’s asylum-seekers are not entitled to coverage by social security institutions.74 This is because asylum-seekers who qualify for refugee status would be covered as refugees. Those whose applications are rejected would be repatriated. As such, there is no social security scheme covering asylum-seekers since they will not be employed for lack of proper documents and thus cannot access social security institutions. However, they may be entitled to limited (emergency) social assistance in terms of health care while their applications are pending provided they are pregnant, or under the age of five years or above 60 years, which is the case for Tanzanians as well. This practice is partly based on

69 Ntseane, D. and Solo, K. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Botswana Country Report” (A Report to the World Bank, 2007) 8.


71 Muyembe ibid 13.72 Bitso, B. “Access to social services for non-citizens and the portability of social benefits within the

Southern Africa Development Community (SADC): Lesotho Country Report” (A Report to the Southern Africa Trust, 2009) 19.


74 Ackson, T. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Tanzania Country Report” (A Report to the Southern Africa Trust, 2009) 15.


the fact that public health care has no mechanisms for knowing a person’s nationality or immigration status, as there are no national identification cards and health workers attend to anybody who fits within the said categories.75

3.1.5 Undocumented non-citizens

Undocumented non-citizens do not have the same rights as other non-citizens, as they do not have proper documents. They too can only be provided assistance in case of a health emergency. Owing to their lack of documentation, undocumented migrants are excluded from the bulk of social protection in SADC. In most cases, they would get assistance only in cases of emergency. Botswana provides assistance to this group of persons under the Programme for Destitute Persons on a temporary basis, for up to six months.76 Zambia provides assistance to such persons under the Public Welfare Assistance Scheme (PWAS) in cases of natural disasters like floods and droughts and in other extreme cases that would need PWAS intervention.77 In addition, undocumented migrants in Tanzania are largely excluded from the ambit of the social security since they cannot be employed in the formal sector due to their irregular status, which sector is largely covered by social security. However, they may have access to health care assistance like refugees and asylum-seekers provided they are pregnant, or under the age of five years or above 60 years.78

In South Africa, the Constitutional Court in the Khosa79 judgment expressly stated that undocumented migrants were exempt from access to social security. As indicated earlier, the court made a distinction between permanent and temporary residents. It stated that while the latter’s link with the country was a tenuous one, the former resided legally in the country and may have done so for a considerable length of time.80 However, undocumented migrants in South Africa enjoy some protection under the law. The Constitution guarantees the right to inherent dignity and as such they have a right to be treated with dignity in South Africa. In Lawyers for Human Rights v The Minister of Home

75 ibid.76 Ntseane, D. and Solo, K. “Access to social services for non-citizens and the portability of social

benefits within the Southern African Development Community (SADC): Botswana Country Report” (A Report to the World Bank, 2007) 8.


78 Ackson, T. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Tanzania Country Report” (A Report to the Southern Africa Trust, 2009) 15.

79 supra.80 Permanent residents are compelled to return to the country at least once every three years, they

have their homes and families in the country, have the right to work in South Africa and even owe a duty of allegiance to the state. The court found that for these reasons temporary migrants were excluded from access to social assistance in South Africa.


Affairs,81 the court rejected the argument that persons illegally resident in the country had no rights and were protected only by international law. It stressed that illegal foreigners at ports of entry are protected by the rights in the Constitution. In Discovery Health Limited v CCMA the labour court extended protection under the Labour Relations Act 66 of 1995 to a foreigner working illegally in South Africa.82 The court adopted a purposive interpretation of the notion “employee” having regard to the South African Constitution.

3.1.6 Exclusions

Some countries exclude every non-citizen from access to social assistance. This is the case, for example, with Swaziland, where social assistance (in the form of old age grants) is accessed by citizens only. No non-citizen (permanent resident, temporary resident, refugee, asylum-seeker or undocumented migrant) has access.83

Botswana’s Universal Old Age Pension provides financial security to the elderly citizens who otherwise are without means of support due to the disintegration of the extended family support system. Eligibility for the Old Age Pension is cur-rently defined only by age (65 years and above). Only Botswana citizens qualify for access.84

3.2 Social insurance and other social services

Citizenship or nationality is often not a requirement for access to social insurance benefits, since these schemes are contributory and mostly employment-based. This implies that permanent residents, temporary residents, refugees (and in some instances even irregular non-citizens) who are employed have access to such schemes.


As mentioned earlier, legislation in Lesotho is either silent or unclear on the right of access to social security by permanent and temporary residents. In Malawi, permanent residents are granted the same standards of services as provided to citizens and if employed can access contributory old age and disability pensions. In Namibia, private health care financed by contributory medical aid schemes is provided to all who are beneficiaries. However, identification documents are required for the private schemes, which imply that undocumented persons are ineligible.

81 2004 (4) SA 125 (CC).82 (2008) ILJ 1480 (LC).83 See Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits

within the Southern African Development Community (SADC): Swaziland Country Report” (A Report to the Southern Africa Trust, 2009) 13.

84 Ntseane, D. and Solo, K. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Botswana Country Report” (A Report to the World Bank, 2007) 12-13.


Non-citizens with permanent residence in South Africa are entitled to participate in the social insurance schemes. In the event that permanent residents are involved in an accident or contract an occupational disease in the workplace, they are entitled to worker’s compensation or to benefit under the Road Accident Fund.85 The Road Accident Fund is a non-employment social insurance scheme, which is funded through a compulsory fuel levy. It pays out compensation for bodily injuries or deaths arising from the negligent driving of motor vehicles.86 The fund is obliged to compensate any person and there is no limitation in terms of citizenship or residence. Therefore non-citizens can access this form of social insurance. Permanent residents, being contributors in terms of the unemployment Insurance Act (UIA),87 may be entitled to benefits in the event of retrenchment, illness, and adoption of young children or pregnancy. Their dependants will also be entitled to benefits in the event of their death. Permanent residents can also access funding for tertiary education and health care on the same footing as citizens.

In Swaziland, non-citizens are able to access most social insurance schemes. Permanent residents, temporary residents, asylum-seekers, refugees and undocumented migrants have access to the Motor Vehicle Accident Fund as well as to health care.88 Citizens, permanent residents, temporary residents and undocumented migrants who are in formal employment are also able to access sickness benefits for illnesses contracted after completing the probation period.89 Currently there is no unemployment insurance scheme in Swaziland. Formal sector employees receive a severance allowance, which is paid on termination of their services. It is envisaged that the proposed Unemployment Benefit Fund (UBF) will be accessible not only to citizens, but also permanent residents, temporary residents, refugees, asylum-seekers and undocumented migrants who are in formal employment.90 However, non-citizens are excluded from membership of the Swaziland National Provident Fund.91

Permanent residents have access to most social insurance schemes in Tanzania. With the exception of the Public Service Retirement Pensions scheme – which covers only citizens as the lone category, which can be employed by the central government on pensionable terms – all other social security institutions covering employees in the private sector also

85 S 22(1) of the South African Compensation for Occupational Injuries and Diseases Act 130 of 1993.86 S 17 of the Road Accident Fund Act 56 of 1996.87 See s 3(1) (d) 63 of 2001. 88 Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits

within the Southern Africa Development Community (SADC): Swaziland Country Report” (A Report to the Southern Africa Trust, 2009) 16.

89 S 129 of the Swaziland Employment Act, 1980.90 Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits

within the Southern Africa Development Community (SADC): Swaziland Country Report” (A Report to the Southern Africa Trust, 2009)15-16.

91 See s 7 of the Swaziland National Provident Fund Order of 1974.


cover permanent residents.92 For instance, the National Social Security Fund (NSSF) and the Parastatal Pensions Fund (PPF) both cover permanent residents by virtue of the fact that they cover, among other groups, employees in the private sector. Since permanent residents are usually employed in the private sector, they are also covered by the NSSF and PPF. As for the Community Health Fund (CHF), there are no conditions attached to membership except for the contributions that have to be made. This being the case, the permanent residents, being part of the local communities in their respective areas, are able to join the schemes.


The position with regard to temporary residents varies. Temporary residents in Tanzania have the right to access social insurance schemes. Non-citizens working as temporary employees are covered only by PPF through its deposit insurance scheme under which they are entitled to a lump sum when their account has to be closed. However, the NSSF excludes temporary employees.93 Further, temporary residents who might be employed by the central government on contractual or operational terms would be covered by the Government Employees Provident Fund (GEPF). In this case, one can safely say temporary residents are only covered by PPF and GEPF.

Malawian temporary non-citizens are not entitled access to most of the social services except those provided for in their contracts of employment.94 They can, however, access the public healthcare system in cases of emergency. They are eligible for access to the private healthcare system where appropriate. Temporary workers are included in social insurance schemes. Temporary non-citizen workers receive benefits at retirement (at the age of 60) or on termination of their contracts. They and other documented non-citizens are able to access pension schemes managed by private institutions.95

In South Africa, temporary residents qualify for some social insurance coverage. Temporary residents can access compensation for occupational injuries and diseases in the event that an injury or disease occurs within the course and scope of their employment. The South African Compensation of Occupational Injuries and Diseases Act provides that if an employee or a dependant of an employee to whom a pension is payable in terms of the Act is resident outside the Republic or is absent from the Republic for a period or periods totalling more than six months, the Director-General may award a lump sum as determined by him

92 See s 16 of the Tanzanian Immigration Act (Act No. 7 of 1995), which provides that foreign nationals may be employed in Tanzania.

93 S 8 of Act 28 of 1997.94 Institute of Policy Research and Social Empowerment (IPRSE) “Access to social services for non-

citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Malawi Country Report” (A Report to the World Bank, 2007) 18.

95 ibid.


in lieu of such pension, and upon payment of such lump sum the right to the pension shall expire.96

With regard to health care, temporary residents are not covered in the public sector. The only means of social security available to them would be through private schemes as regulated by the South African Medical Schemes Act,97 which is contributory. It is a pre-requisite, before enrolment to study in South Africa, for a foreign student to be a member of a medical aid scheme. This is to avoid a situation whereby non-citizens with temporary residency status place a strain on the resources available to citizens and permanent residents.

Temporary residents can also access the benefits provided by the Road Accident Fund, since there is no limitation in terms of citizenship or residence. However, temporary residents in South Africa who are migrant workers are excluded from unemployment insurance if they have to return to their country of origin and thus, in the event of termination of services, illness, maternity or adoption, they will receive no coverage. The unemployment Insurance Act excludes temporary residents who enter the country for purposes of carrying out a fixed contract of service if that person is obliged to leave the country on termination of the contract.98

With regard to education, temporary residents cannot access free primary education. At tertiary level, they do not qualify for the National Student Financial Aid Scheme (NSFSAS) loan given by government either. In addition, temporary residents who are not in possession of a study permit (even though they may be in possession of a work permit or another permit) are prevented from studying. This is due to a recent interpretation of section 10 of the South African Immigration Act. 99 Section 10 of the Act states that “a foreigner may enter and sojourn in the Republic only if he or she is in possession of one of the above temporary residence permits.” It is unclear whether it was the intention of the legislature, in section 10(4) of the Act, that the issuing of a particular permit to a foreigner excluded any other permit being issued to the same person. If this were to be the case, it implies a turnaround from an earlier position where, for example, a permit was issued allowing a foreigner to work and study at the same time.100

In addition, universities have different fee structures for different categories of students. These are differentiated according to residential status, nationality or region/continent of origin. Refugees and permanent residents pay the same fees as citizens. Students from the SADC region may pay either the same amount of fees as citizens, or an amount slightly

96 S 60(1) of the South African Compensation for Occupational Injuries and Diseases Act 130 of 1993.97 Medical Schemes Act 131 of 1998.98 See s 3(1)(d) of the unemployment Insurance Act.99 South African Immigration Act 13 of 2002.100 CICLASS “Access to social services for non-citizens and the portability of social benefits within the

Southern African Development Community (SADC): South Africa Country Report” (A Report to the World Bank, 2007) 27.


lower than students from other regions. In some cases, SADC and other African students pay the same amount, which is lower than students from other continents, but higher than fees for citizens.101

3.2.3 Refugees and Asylum-seekers

Where refugees have the right to work, they are entitled to participate in occupational social insurance schemes. For example, Malawi’s refugees are eligible for private medical and educational services. However, undocumented migrants are considered illegal and are therefore not eligible for any form of social security.102

Asylum-seekers in Tanzania are excluded from the scope of coverage by social security schemes until such time that their status has been determined. Those whose applications are rejected would be repatriated. Thus there is no social security scheme covering asylum-seekers, since they will not be employed for lack of proper documentation.

Under South Africa’s Refugees Act, asylum-seekers are not allowed to work, study, or be self-employed until they are granted refugee status (although individuals can apply for special consideration to be allowed to work after six months).103 In Watchenuka and another v The Minister of Home Affairs and two others,104 the applicants challenged regulation 7(1)(a) of the Regulations to the Refugees Act, which prohibits asylum-seekers from undertaking employment or studying. The court found that the right to dignity was intricately linked to the right to work. The court further held that the general prohibition of employment and study for the first 180 days after a permit had been issued was in conflict with the Bill of Rights. Freedom to engage in productive work, even where that is not required to survive, was indeed an important component of human dignity. The court held that where employment was the only reasonable means for a person’s support, then other considerations arose. What then would be in issue were not merely a restriction upon a person’s capacity for self-fulfilment, but a restriction upon his or her ability to live without humiliation and degradation.105 The High Court held the prohibition on work and study contained in regulation 7 of Refugee Regulations106 to be ultra vires and inconsistent with the Constitution and invalid. On appeal, the Supreme Court of Appeal107 found the general

101 See e.g., the fees structure of the University of Johannesburg at http://www.uj.ac.za/documents/2007/Tuition_Fees/Student_Fees_2007_Oktober_2006.doc.


103 Crush, J. South Africa: New Nation, New Migration Policy? Accessed at http://www.migrationinformation.org/Feature/display.cfm?id=131 (12th April 2007). See, however, the Watchenuka case below.

104 2003 1 SA 619 (C). 105 par 32 ibid.106 Refugee Regulations (Forms and Procedure) of 2000.107 Minister of Home Affairs and Others v Watchenuka and Another 2004 4 SA 326 (SCA).


prohibition on asylum-seekers from employment and study to be unlawful.108 The court held that the State must take account of the circumstances of the applicant, whether on a case-by-case basis or by formulating guidelines to be applied when issuing permits in particular cases.

The Supreme Court of Appeal also noted that there seems to be a gap in the South African Refugees Act, as the Act makes a distinction between an asylum-seeker and a refugee. However, it fails to adequately address the rights of asylum-seekers while they are in transition (after entering the country but before being granted refugee status). In addition, there is no contingency plan for asylum-seekers who are in this transition. Furthermore, in light of the fact that an asylum-seeker permit is, in practice, constantly renewed before refugee status is actually granted, many people are caught in this gap and the issue of their right of access to social security is in question. In light of the fact that the Act specifically lays down rights for refugees, it seems unsatisfactory that asylum-seekers fall through the cracks before their rights are realised. There is a lack of state support and there is minimal other support for asylum-seekers, which worsens their inability to survive pending the finalisation of their applications.109 This whole situation is exacerbated by the often-long delays in finalising these applications.

With regard to the right to education, the court in the Watchenuka case further stated that the freedom to study is inherent in human dignity and without it a person is deprived of the potential for human fulfilment. The court referred to section 29(1) of the Constitution, which guarantees everyone the right to basic education, including adult education, and to further education. The court accepted that this right was not absolute; however, it stated that where a child was lawfully in the country-seeking asylum, there was no justification for limiting the right so as to deprive him or her of the opportunity for human fulfilment at a critical period.110 It therefore follows that asylum-seekers can work and study in South Africa. However, it must be highlighted that in practice asylum-seekers cannot access work opportunities easily. Most jobs require work permits and the general populace are not particularly sensitised to the right of an asylum-seeker to work in the absence of a work permit or an identity document (ID book). Most asylum-seekers are forced to access jobs that require little or no documentation. These are mostly physical and low-paid jobs such as car guard attendants, security guards, domestic workers and farm labourers.111

108 par 33-36.109 ibid. These conditions appear to be an attempt to dissuade people from seeking asylum in South

Africa.110 par 36.111 CICLASS “Access to social services for non-citizens and the portability of social benefits within the

Southern African Development Community (SADC): South Africa Country Report” (A Report to the World Bank, 2007) 33.


In order for asylum-seekers to access free primary education, refugee status must be conferred upon them. Therefore, they do not have access to free primary education nor assisted government loans at tertiary level. The fact that they are allowed to move freely within South Africa and to work implies that they are expected to be self-sufficient to pay for their education and survival. As noted above, their lack of proper documentation, however, effectively excludes them from decent jobs.

3.2.4 Undocumented non-citizens

Few SADC countries extend social security and labour law protection to undocumented non-citizens, while most do not. In the case of Lesotho, the labour laws do not discriminate between workers who are citizens, and those who are non-citizens.112 These laws only refer to “workers” or “employees”. Therefore, non-citizens who enter Lesotho legally but obtain employment and work illegally in the country are still entitled to compensation if such persons suffer an occupational injury or disease.113

In South Africa, until recently, illegal immigrants or migrant workers did not qualify for labour law protection or social security benefits. The reason for this was that a person who is not in possession of a work permit as required by section 19 of the South African Immigration Act114 was not considered as an employee for purposes of labour law (for example, for the purposes of bringing a case before the labour law dispute resolution institutions)115 and, one could add social security law, as no valid contract of employment was said to exist and such a person could not be understood to be “an employee”.116

However, a landmark judgment in the case of Discovery Health Ltd v Commission for Conciliation, Mediation and Arbitration & others117 extended labour law (and implicitly

112 Namely the Lesotho Labour Code Order of 1992 and the Lesotho Workmen’s Compensation Act of 1977.

113 Bitso, B. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Lesotho Country Report” (A Report to the Southern Africa Trust, 2009) 21.

114 13 of 2002.115 Moses v Safika Holdings (Pty) Ltd (2001) 22 ILJ 1261 (CCMA); Vundla v Millies Fashions (2003)

24 ILJ 462 (CCMA); Lende v Goldberg 1983 2 SA 284 (C); see, however, Mackenzie v Paparazzi Pizzeria Restaurant obo Pretorius 1998 BALR 1165 (CCMA).

116 Smit, N. “Employment Injuries and Diseases” in Olivier, M.P., Smit, N. and Kalula, E.R. Social Security: A Legal Analysis (LexisNexis Butterworths, 2003) 472.

117 (2008) 29 ILJ 1480 (LC). The third respondent Lanzetta (an Argentina national) was offered employment by the applicant (Discovery Health), which he accepted and actually started working with the work permit from his previous job. A certificate of employment dated 4 January 2005 was issued by the respondent to the applicant. The respondent only received documentation from the present employer to assist him process a work permit on 2 December, whereas his existing permit expired end of December 2005. On 4 January 2006, Lanzetta was served a letter terminating his contract on the basis that he did not have a valid work permit. The applicant referred the matter to the CCMA on the basis that he had been unfairly dismissed. Discovery Health contested in limine that Lanzetta was not an employee as per the definition of the LRA so the CCMA did not have


social security protection) to undocumented migrant workers.118 The questions before the Labour Court was whether the contract of employment concluded between Discovery Health and Lanzetta was invalid because of the fact that Lanzetta did not have a permit issued under the Immigration Act that entitled him to work for the Applicant. The court held that the contract of employment concluded was not invalid, despite the fact that Lanzetta did not have a valid work permit to work for Discovery Health. For this reason, Lanzetta was an “employee” as defined in section 213 of the Labour Relations Act 66 of 1995 (the LRA) and entitled to refer the dispute concerning his unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The court further stated that even if the employment contract was invalid only because Discovery Health was not permitted to employ him under section 38(1) of the South African Immigration Act, Lanzetta was nonetheless an “employee” as defined by section 213 of the Labour Relations Act because that definition is not dependent on a valid and enforceable contract of employment.

The court further held that the International Labour Organisation (ILO) Migrant Workers (Supplementary Provisions) Convention 143 of 1975 sets out the general obligation of member states to respect the basic human rights of all migrant workers.119 At the same time, the convention addresses problems associated with clandestine immigration and calls for, among other things, the adoption and application of sanctions against persons who assist in the illegal movements of migrants or illegally employ them. In short, the protection of the fundamental rights of migrants, even those who are employed illegally is a primary purpose of Convention 143 of 1975, and the LRA should be interpreted in a manner that recognises that purpose.120 The court opined that the purpose of the South African Immigration Act would be better served by regarding the contract valid.

With regard to access to housing, undocumented migrants cannot access housing subsidies nor buy a house in the unlikely event of them having the funds to purchase it. To conclude, having no documentation to reside legally in the country precludes them from accessing most of the social security system in South Africa. The reality of the situation is that most undocumented migrants are impoverished and reside in informal dwellings and shacks. In the recent Supreme Court of Appeal case Tswelopele Non-profit Organisation v City of Tshwane Metropolitan Municipality121 sixteen undocumented migrants were among

jurisdiction to arbitrate Lanzetta’s claim. The Commissioner ruled against Discovery Health that Lanzetta was an employee, and that the CCMA had jurisdiction to determine his unfair dismissal dispute. The matter was referred to the Labour Court for review.

118 Extending the definition of “employee” to undocumented non-citizens is important for social security purposes, as access to South African social security (social insurance) is largely premised on a person fitting the employee definition.

119 Article 1.120 par 49.121 2007 6 SA 511 (SCA).


100 people forcibly evicted from their homes and the structures they erected on the land on which they were squatting were burnt down. The court found that this action had in-fringed on the occupier’s property rights. Although the court was silent as to the right of undocumented migrants with regard to housing, it reiterated that the action trampled on their feelings and affronted their social standing. It stressed that the Constitution entrenches the inherent right to dignity to “everyone”, which must be respected and protected, and it stressed that the occupiers were bearers of constitutional rights.

3.2.5 Exclusions

Some schemes exclude non-citizens due to restrictions on the employment of non-citizens in the occupations covered by the schemes. One such scheme is Tanzania’s Political Service Retirement Benefits Scheme. The scheme covers politicians, such as the president, vice president, prime minister, ministers, deputy ministers, speaker of the national assembly, deputy speaker, a member of parliament, regional and district commissioners.122 Since non-Tanzanians cannot hold political posts, irrespective of their status, they cannot be covered by the scheme.123

In some cases, although citizenship or nationality is often not a requirement for access to social insurance benefits, non-citizens are sometimes excluded from certain social insurance schemes. For example, South Africa’s unemployment Insurance Act (UIA)124 excludes non-citizen fixed-term contract workers who enter the Republic for the purpose of carrying out a contract of service, apprenticeship or learnership, if there is a legal or a contractual requirement or any other agreement or undertaking that such persons must leave the Republic, or that such person be repatriated upon termination of the contract.125 This is in contrast with the position of other fixed-term employees. Other fixed-term contract workers who lose their employment as a result of the termination of their contract remain entitled to receive Unemployment Insurance Fund (UIF) benefits.126

122 S 4 of Act 3 of 1999.123 Ackson, T. “Access to social services for non-citizens and the portability of social benefits within the

Southern African Development Community (SADC): Tanzania Country Report” (A Report to the Southern Africa Trust, 2009) 14.

124 The South African unemployment Insurance Act (UIA) 63 of 2001 covers workers and their dependants against temporary unemployment arising from termination of service, illness, maternity, and adoption.

125 S 3(1)(d) UIA and s 4(1)(d) unemployment Insurance Contributions Act of 2002.126 See UIA s 16(1)(a)(i).


3.3 Abridged matrices on access to social security by non-citizens in the SADC

A. Citizens

Country Social assistance

National and occupational old-age and

disability pension

Unemploy-ment

benefits

Health care (including

health insurance)

Public housing

Public schooling

South Africa Malawi x Botswana Namibia x Zambia x x xTanzania x Swaziland x Mauritius Lesotho x

B. Permanent Residents

C. Temporary Residents



disability pension

Unemploy-ment

benefits


health insurance)

Public housing

Public schooling

South Africa x x x xMalawi x x x x xBotswana x x x x Namibia x x x Zambia x x x x xTanzania x x Swaziland x x x x xMauritius x x x Lesotho x x x x x



disability pension

Unemploy-ment

benefits


health insurance)

Public housing

Public schooling

South Africa Malawi x Botswana x x x Namibia x x Zambia x x x xTanzania x Swaziland x x x xMauritius x x Lesotho x x


D. Refugees



disability pension

Unemploy-ment

benefits


health insurance)

Public housing

Public schooling

South Africa x x Malawi x x x x x xBotswana x x x x x xNamibia x x Zambia x x x x x xTanzania x Swaziland x x x x x xMauritius x x x x x xLesotho x x x x x x

E. Asylum-Seekers

f. Undocumented Migrants



disability pension

Unemploy-ment

benefits


health insurance)

Public housing

Public schooling

South Africa x x x x x xMalawi x x x x x xBotswana x x x x x xNamibia x x Zambia x x x x x xTanzania x x x Swaziland x x x x x xMauritius x x x x x xLesotho x x x x x x



disability pension

Unemploy-ment

benefits


health insurance)

Public housing

Public schooling

South Africa x x x x x xMalawi x x x x x xBotswana x x x x x xNamibia x x x x x xZambia x x x x x xTanzania x x x Swaziland x x x x x xMauritius x x x x x xLesotho x x x x


4. thE portABiLitY of SoCiAL SECUritY BENEfitS iN thE SoUthErN AfriCAN DEVELopMENt CoMMUNitY: iSSUES, ChALLENGES AND ALtErNAtiVES

4.1 introduction

One issue that emerges from the study is that the (frontier) portability of social security benefits is limited127 in SADC countries.128 For that reason, migrant workers and their families risk not receiving their social security benefits when they return to their home countries due to the territorial nature of social security benefits. In the region freedom of movement also stretches beyond workers, and people also migrate for political, religious and financial or economic reasons. These people are also not covered.

It is often said that the coordination, maintenance and portability of social security benefits remain subject to a number of administrative, social, fiscal and financial barriers. Reasons for the shortage of social security aggregation, maintenance and portability arrangements in the region are diverse and they include the lack of national insurance schemes in many of the countries as well as the lack of political will on the part of some countries in the region. Furthermore, there appears to be a lack of sustained significant political pressure for the conclusion of social security portability agreements from the migrant communities and their representatives in SADC. Given the importance of labour migration to past, present and future economic development, countries in the region need to develop an approach to and implementation of intra-regional coordination and possibly even portability of social security benefits.

127 There is as yet no multi-lateral SADC social security portability agreement, although some countries have concluded bilateral labour and social security arrangements. Most bilateral agreements were concluded by South Africa with neighbouring countries regulating the supply of migrant labour to South Africa. Some of these include Botswana, Lesotho, Malawi, Mozambique (the agreement was actually signed by the Portuguese colonial government), Swaziland, and Zimbabwe. These agreements regulate the flow of migrant labour from these countries to South Africa, with provisions regulating social security merely ancillary to other arrangements. The agreements focus on the payment of taxes to the government of the sending country, as well as deferred pay to be paid to the foreign national in the sending country upon return to that country; allowances payable to family members; and monies to be paid into a welfare fund which may be set up by the government of the sending country for the purpose of supporting such citizens during periods of their disablement upon return to the sending country. The agreements specify conditions and obligations on the part of both South Africa and the source countries. However, these agreements are limited in scope and effect, and insufficient from a co-ordination and portability perspective. They are not reciprocal in nature, as they stand to regulate the position of nationals of one of the respective countries only. In addition, they do not cover public social security transfers, but only employer-based occupational-based payments. Apart from providing for some measure of portability, these agreements do not provide for other arrangements typical of co-ordination regimes, such as maintenance of acquired rights, aggregation of insurance periods, and equality of treatment with nationals of the receiving country in social security matters.

128 Portability is also relevant when moving between different schemes within a country, or even when participation in a voluntary scheme is withdrawn.


It must be conceded, however, that there are issues and challenges that underlie the limited access to social security benefits across the region, and these should be taken into account and addressed in developing appropriate policy interventions.129 These include the link between portability and other social security coordination principles, social security and the territoriality principle, social security benefits taxation, administration of social security and restrictions on the exportability of currency.

Regardless of these challenges and obstacles, there is a need to protect migrant workers. South Africa as an active member state of the international community (this is also true for the rest of the SADC countries) and as prescribed by the South African Constitution of 1996 must have regard to international law provisions in this regard.

The United Nations International Convention on the Protection of Rights of Migrant Workers and Members of their Families of 1990 entered into force in 2003.130 The ILO conventions (Convention on Migration for Employment 97 of 1949; Convention on Equality of Treatment of Nationals and Non-national in Social Security Convention 118 of 1962; Convention on the Maintenance of Social Security Rights 157 of 1982) are also important in this regard. Of particular importance is Convention 157 of 1982, which deals with the subject of enhancing the portability of social security rights.

In the SADC region the focus will arguably first need to be on the maintenance of acquired rights and the provision of benefits abroad. This is dealt with in Part IV of the 1982 Convention. Article 9(1) states that:

... each Member shall guarantee the provision of invalidity, old-age and survivors’ cash benefits, pensions in respect of employment injuries and death grants, to which a right is acquired under its legislation, to beneficiaries who are nationals of a Member State or refugees or stateless persons, irrespective of their place of residence, subject to measures for this purpose to be taken, where necessary, by agreement between the Members or with the states concerned.

The other issues that are raised concern avoiding conflicts of laws and the undesirable consequences that might ensue for those concerned either through lack of protection, or as a result of undue plurality of contributions or other liabilities or of benefits. In addition, countries may also provide for Maintenance of Rights in Course of Acquisition, and in this regard article 7 states that:

129 Although systems can be dissimilar, certain common ground must be established (e.g. principles or values of equality, rule of law, etc). See Mortenson, J. and Sauto, R. (ed.) Cross-Border Portability of Pension Rights: An Important Condition for an Integrated Market for Pension Provision (Workshop proceedings and contributions 28 February–1 March 2003, Brussels) 5: “Furthermore … tax and benefit systems do not need to be either integrated or harmonised to ensure effective mobility, but they do need to be compatible and well coordinated. Complexity, lack of compatibility and lack of transparency can create both administrative hurdles and financial concerns and costs that inhibit mobility.”

130 Forty-two countries worldwide have ratified/acceded to the Convention as of 1 April 2010, with Lesotho and Seychelles the only SADC Member States (see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en).


... they shall provide for the adding together, to the extent necessary, of periods of insurance, employment, occupational activity or residence, as the case may be, completed under the legislation of the Members concerned for the purposes of:

(a) participation in voluntary insurance or optional continued insurance, as appropriate;

(b) acquisition, maintenance or recovery of rights and, as the case may be, calculation of benefits.”

4.2 issues and challenges

4.2.1 Link between portability and other social security coordination principles

The portability of benefits is not an isolated matter. It is an integral part of other social security coordination arrangements (such as equality of treatment, aggregation of insurance periods and maintenance of acquired rights and benefits), which are aimed at ensuring that migrants and their families enjoy social security coverage. In developing social security portability policies, policymakers need to avoid the trap of treating portability arrangements as an isolated issue. Doing so would presuppose that migrant workers are covered under the social security systems of the host countries in SADC (which, as shown in this study, would be an incorrect assumption). Therefore, as a starting point, it is crucial that an assessment be made as to under which social security schemes migrants are covered and are likely to be eligible for social security benefits. The nature of these schemes is of some importance. For example, if one country has a national health system while another has a (private) social insurance system it would be difficult to coordinate the two systems in the absence of special provisions to accommodate these differences. This approach should serve two purposes: On the one hand, it should identify social security schemes the scope of coverage of which could or should be widened to include migrants and their families. On the other hand, it will highlight schemes that extend coverage to migrant workers and their amenability to portability arrangements.

4.2.2 Territoriality principle

Social security benefits portability mechanisms do not and cannot function properly in a legal and institutional vacuum. This statement should be understood within the perspective that a social security system of a country operates within a particular legal context and institutional framework applicable to such a system.131 This context defines the territorial boundaries within which a social security system operates. It is for this reason that reference is often made to the so-called territoriality principle. In accordance with this principle:

131 It is this framework which provides answers to pertinent questions including the following: Personal scope of coverage: Who is or should (not) be covered by a particular social security scheme? Period of eligibility: When are social security benefits (not) payable to an individual and/or his or her dependant(s)? Territorial scope of coverage: Where are social security benefits (not) payable?


… social security law only applies to facts which happened within the national borders. This means that the responsibility of the state is restricted to persons who are nationals or residents of a state, or that only risks that take place for the first time on the territory of that state are covered by the same state. Furthermore, it follows from this principle that the obligation of paying contributions only exists for person residing or working in the territory of the state in question. As a result, only the period, which a person has worked or resided on the territory, are taken into account for satisfying the conditions for the right to benefit. In other words, a relationship is made between, on the one hand, the territory of the state, and on the other hand, the group of persons, contributions, benefits and/or risks that are governed by the legislation of that state.132

The territoriality principle can hinder the cross-border maintenance of accrual periods, and right to and payment of social security benefits. To this end, countries will need to extra-territorialise the payment of benefits (i.e. after accrual thereof) by making provision for such an arrangement in national laws and/or bilateral or multilateral social security agreements.

4.2.3 Taxation

Each country has its own taxation system. Certain social security benefits may be taxable and some may be exempt from taxation. This may vary from one country to the other. Accordingly, the mismatch of tax systems may result in double taxation or non-taxation. Such tax obstacles to the cross-border provision of social security benefits will have to be identified and addressed. Such matters could be dealt with through unilateral initiatives or bilateral or multilateral social security and/or tax treaties.

4.2.4 Administration

There are a variety of administrative challenges that will need to be investigated and addressed so as to facilitate the conclusion of portability agreements and, most importantly, cost-effective, simple and speedy administration of cross-border social security rights. These challenges include, among other things, administrative capacity. Social security institutions entrusted with, for example, the disbursement of ported benefits should have the capacity to ensure that these benefits are timeously paid to rightful beneficiaries and, where necessary, compliance with any (eligibility) rules through proper monitoring and enforcement mechanisms. This may, in some instances, require access by (prospective) beneficiaries to appropriate adjudication and enforcement mechanisms. This aspect also requires that beneficiaries should be made aware of their rights, both in respect of acquired rights as well as the enforcement of such rights.

132 Pennings, F. Introduction to European Social Security Law (Kluwer, 1994) 26.


4.2.5 Exportability of currency

The (non-)exportability of currency is a matter that is regulated and, at times, restricted by law in most countries. In some instances, the approval of the Central Bank has to be sought and granted before money can be exported. There is nothing wrong with such a requirement. However, cumbersome currency restrictions may impede the conclusion of portability agreements and the eventual payment of social security benefits. This could be compounded by the absence or shortage of hard currency in some countries.133 In addition, prohibitively high international financial transaction costs could substantially reduce the value of social security benefits when they eventually reach the intended beneficiaries.

4.3 Alternative approaches

There are three approaches that countries in the SADC region can adopt in their endeavour to ensure the portability of social security benefits. Firstly, countries can unilaterally amend their laws so as to allow the cross-border payment of social security benefits. Such an exercise will include the widening of the territorial scope of application of social security laws and the repealing of provisions in social security laws that hinder the portability of benefits. In the area of social security taxation, tax laws will have to be amended so as to avoid double taxation or non-taxation. Secondly, countries could ensure the portability of social security benefits by means of (social security) bilateral agreements. As indicated in this study, some countries have entered into bilateral labour agreements with South Africa. Efforts to modernise these agreements should include provisions geared at the (facilitation) of cross-border payment of social security benefits.134 It is submitted that in this regard the intended beneficiaries should be consulted regarding administrative, financial and legal restraints that they perceive or experience as pressing. Thirdly, countries could enter into multilateral social security agreements dealing with the issues of portability of benefits. This measure could also be facilitated and adopted at SADC level. It should be recalled that article 17(2) of the SADC Code of Social Security requires member states to ensure the facilitation of exportability of benefits, including the payment of benefits in the host country.

4.4 Concluding observations

In their quest to develop portability policies, countries in the region must take cognisance of the fact that such policies acknowledge that “travel is an integral part of modern living.”135 Secondly, they concede that individuals acquire rights to benefits, which are

133 Zimbabwe is a case in point.134 With regard to social insurance benefits Bilateral Temporary Labour Arrangements may be an

option.135 “Portability of Australian income support payments” – accessed at http://www.fahcsia.gov.au.


derived from their financial contributions and that the current global economy requires unhindered movement of not only people but also finances and services.136 Furthermore, one can support the submission that portability of social security benefits is not only an economic consideration but is also a function of contemporary social policy objectives.137 In accordance with this perspective, it has been accepted that social security payments are means of “building self-reliance and encouraging social participation” for recipients. 138 For that reason, it can be concluded that:

[p]ortability of benefits as well as the possibility of accruing rights in one country and being paid in another country constitutes an important part of this new philosophy in the globalised world.139

5. thE LEGAL frAMEWorK for thE protECtioN of NoN- CitiZENS’ SoCiAL SECUritY riGhtS

Social security is protected as a human right both in international instruments140 and in constitutions141 around the world.

5.1 Constitutional framework

The protection of social security and the rights of non-citizens in the different SADC constitutions varies. In some constitutions, no mention is made of social security.142 However, some constitutions provide directly or indirectly for the protection of social security. Many of these rights are related to social security. In some cases, social security rights are of a general nature, and do not create directly enforceable social security or broader social protection rights. They are provided either as “principles of national policy”143 or “principles of state”.144

136 ibid.137 ibid.138 ibid.139 ibid.140 See, e.g., art 9 of the uN International Covenant for Economic, Social and Cultural Rights of 1966, and

the provisions of ILO Convention 102 of 1952 (on minimum standards in social security).141 E.g. s 27(1)(c) of the South African Constitution of 1996.142 In the Bill of Rights of the Constitution of Botswana, no mention is made of the right to social

security. This is also the case in Zimbabwe, where there is no constitutional framework for the protection of social rights.

143 This is the case with the Zambian Constitution of 1996. Under the principles of state in s 7 of the Constitution it is stipulated that the state will endeavour to provide social protection to its citizens subject to the availability of resources. The Constitution of Tanzania 1998 Part 1 s 11 in its Fundamental Objectives and Directive Principles of State Policy stipulates that the state authority must make appropriate provisions for the realisation of a person’s right to work, to self-education and social welfare at times of old age, sickness or disability, and in other cases of incapacity, without prejudice to those rights, the state authority must make provisions to ensure that every person earns his or her livelihood.

144 In the Constitution of Malawi of 2004.


In the case of South Africa the right of access to social security is specifically provided for in the Constitution. The Constitution grants to everyone the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.145 It also obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.146

In addition to providing for social security (-related) rights, some SADC constitutions also contain non-discrimination clauses.147 Such non-discrimination clauses have been applied to realise the social security and other constitutional rights of non-citizens in these countries. For example, the South African Constitution provides that “everyone is equal before the law and has the right to equal protection and benefit of the law.148 The Constitution further states that equality includes the full and equal enjoyment of all rights and freedoms, and that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.149

In addition, section 27(1)(c) of the South African Constitution guarantees everyone the right to have access to social security, including social insurance. In the judgment of the Constitutional Court in Khosa and others v The Minister of Social Development and others; Mahlaule and others v The Minister of Social Development and others150 the court held that non-citizens are included in the constitutional entitlement of “everyone” to have access to social security and appropriate social assistance.151 Their exclusion from the social security system must therefore pass the constitutional test of reasonableness.

In the case of Larbi Odam v MEC for Education (North-West Province),152 the court considered the constitutionality of regulations disqualifying non-citizens from permanent employment as teachers in state schools. The court found discrimination on the basis

145 S 27(1)(c).146 S 27(2). This is also known as direct social protection, where socio-economic rights as a separate

category of rights can be enforced and implemented by courts independent of the so-called civil and political rights: See Jansen van Rensburg, L Die Beregtiging van die Fundamentele Reg op Toegang tot Sosiale Sekerheid (RAU Johannesburg 2001) 47-65.

147 Such as South Africa and Namibia.148 S 9(1) of the South African Constitution.149 S 9(2) and (3) of the South African Constitution.150 2004 (6) BCLR 569 (CC).151 par 590D.152 Larbi-Odam v MEC for Education (North-West Province) 1997 (12) BCLR 1655 (CC). In this case,

the court applied the equality protections of the interim Constitution to non-South African citizens and struck down a Department of Education regulation prohibiting foreign citizens from being permanently employed as teachers in state schools. The regulation had provided that, subject to certain exceptions, only South African citizens could be appointed to permanent teaching posts in state schools.


of citizenship to be unconstitutional.153 The court further held that denying permanent residents job security when they are allowed to live and work in South Africa indefinitely (and to apply in due course for citizenship) is unfair discrimination. Currently permanent residents can freely compete with South African citizens in the job market.

5.2 regional (SADC) framework

5.2.1 SADC Treaty

The SADC Treaty, which established the organisation, was signed at the Summit of Heads of State and Government on August 17, 1992 in Windhoek, Namibia. The SADC Treaty is a legally binding document providing an all-encompassing framework in terms of which countries of the SADC region must coordinate, harmonise and rationalise their policies and strategies for sustainable development in all areas of human endeavour. The Treaty commits member states to fundamental principles of sovereign equality of members, solidarity, peace and security, human rights, democracy and rule of law, equity, balance and mutual benefit.154

Article 2 of the SADC Treaty provides the legal basis and framework for achieving SADC’s mission to promote sustainable and equitable economic growth and socio-economic development through efficient productive systems, deeper cooperation and integration, good governance, and durable peace and security, so that the region emerges as a competitive and effective player in international relations and the world economy.155

In terms of article 5 of the SADC Treaty, some of the organisation’s objectives are to promote sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of southern Africa and support the socially disadvantaged through regional integration. SADC also seeks to promote common political values, systems and other shared values which are transmitted through institutions which are democratic, legitimate and effective; consolidate, defend and maintain democracy, peace, security and stability; promote self-sustaining development on the basis of collective self-reliance, and the interdependence of member states; achieve complementarity between national and regional strategies and programmes; promote and maximise productive employment and utilisation of resources of the

153 The court noted three reasons for this: that foreign citizens are a minority in South Africa and all countries, with little political power; that citizenship is a personal attribute which is difficult to change; and that there were specific threats and intimidation that these foreign teachers faced. All of these reasons made foreign citizens a vulnerable group that should be protected in terms of the equality clause. Therefore, while some jobs might be constitutionally limited because of particular political sensitivity (e.g. a judge of the Constitutional Court), in general, employment opportunities should be available to permanent residents and South African citizens on an equal basis.

154 Article 4 of the SADC Treaty.155 ibid.


region; achieve sustainable utilisation of natural resources and effective protection of the environment; strengthen and consolidate the longstanding historical, social and cultural affinities and links among the people of the region; combat HIV/AIDS or other deadly and communicable diseases; ensure that poverty eradication is addressed in all SADC activities and programmes; and mainstream gender in the process of community building.156

In order to achieve its objectives, the SADC has undertaken to harmonise political and socio-economic policies and plans of member states; encourage the people of the region and their institutions to take initiatives to develop economic, social and cultural ties across the region, and to participate fully in the implementation of the programmes and projects of the SADC; create appropriate institutions and mechanisms for the mobilisation of requisite resources for the implementation of programmes and operations of SADC and its institutions.

The SADC also aims to develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the region generally, among member states; promote the development of human resources; promote the development, transfer and mastery of technology; improve economic management and performance through regional cooperation; promote the coordination and harmonisation of the international relations of member states; secure international understanding, cooperation and support, and mobilise the inflow of public and private resources into the region; and develop such other activities as member states may decide in furtherance of the objectives of this Treaty.157

The SADC’s vision is one of a common future, within a regional community that will ensure economic well-being, improvement of the standards of living and quality of life, freedom and social justice; and peace and security for the peoples of southern Africa. This shared vision is anchored in the common values and principles and the historical and cultural affinities that exist amongst the peoples of southern Africa.158

The SADC’s Common Agenda is based on various principles, such as development orientation; subsidiarity; market integration and development; facilitation and promotion of trade and investment and variable geometry. The Agenda includes, inter alia, the promotion of sustainable and equitable economic growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication.

The signatories of the SADC Treaty undertake to adopt adequate measures to promote the achievement of the objectives of SADC, and to refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and

156 Article 5(1) of the SADC Treaty.157 Article 5(2) of the SADC Treaty.158 SADC “SADC Profile” – accessed at http://www.sadc.int (21 April 2009).


the implementation of the provisions of the Treaty. They also seek not to discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit; not to discriminate against any member state; to take all steps necessary to ensure the uniform application of the Treaty; to take all necessary steps to accord the Treaty the force of national law; and to cooperate with and assist institutions of the SADC in the performance of their duties.

Article 21 of the SADC Treaty enjoins member states to cooperate with each other in the attainment of the organisation’s objectives. It states that member states shall cooperate in all areas necessary to foster regional development and integration on the basis of balance, equity and mutual benefit.159 In this respect, member states undertake, through appropriate institutions of the SADC, to co-ordinate, rationalise and harmonise their overall macro-economic policies and strategies, programmes and projects in the areas of cooperation.160

Member states further agree to cooperate, in accordance with the provisions of the Treaty, in the areas of food security, land and agriculture; infrastructure and services; trade, industry, finance, investment and mining; social and human development and special programmes; science and technology; natural resources and environment; social welfare, information and culture; politics, diplomacy, international relations, peace and security; and any additional areas of cooperation that may be decided upon by the Council.161 Member states also agree to conclude such Protocols as may be necessary in each area of cooperation, which shall spell out the objectives and scope of, and institutional mechanisms for, cooperation and integration.162

Article 23 provides that in pursuance of the objectives of the Treaty, SADC shall seek to involve fully the people of the region and key stakeholders in the process of regional integration.163 It shall also cooperate with and support the initiatives of the peoples of the region and key stakeholders, contributing to the objectives of this Treaty in the areas of cooperation in order to foster closer relations among the communities, associations and people of the region.

5.2.2 Charter of fundamental Social Rights in the SADC

The Charter of Fundamental Social Rights was adopted in August 2003. The Charter underpins the need for social protection, in particular of workers and vulnerable groups. The Charter makes comprehensive provision for the establishment of harmonised

159 Article 21(1) of the SADC Treaty.160 Article 21(2) of the SADC Treaty.161 Article 21(3) and (4) of the SADC Treaty.162 Article 22.163 Key stakeholders include the private sector; civil society; non-governmental organisations; and

workers and employers organisations.


programmes of social security throughout the region. Minimum requirements and the harmonisation of these requirements are also foreseen, inter alia, in the area of paid maternal leave and occupational health and safety protection.164

The Charter recalls the objectives of the SADC Treaty, such as to achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the peoples of southern Africa and support the social disadvantaged through SADC regional integration. The Charter also contains provisions relating to the social protection of both workers and those who are not employed – and regulates the position of workers (in terms of social protection) more comprehensively than those who do not work. Article 10 of the Charter stipulates that:

SADC Member States shall create an enabling environment such that every worker in the SADC Region shall have a right to adequate social protection and shall, regardless of status and the type of employment, enjoy adequate social security benefits. Persons who have been unable to either enter or re-enter the labour market and have no means of subsistence shall be able to receive sufficient resources and social assistance.

In addition, equal treatment for men and women as well as equal opportunities to both men and women are required in, amongst others, the area of social protection.165 Member states are also required to develop reasonable measures to enable men and women to reconcile their occupational and family obligations.166 Protection of children and young people is emphasised,167 while member states undertake to create an enabling environment in accordance with arrangements applying to each country to protect the elderly. This protection relates both to workers in respect of whom retirement provision exists, and every other person who has reached retirement age, but in respect of whom no entitlement to a pension exists and who does not have other means of subsistence. As far as the former are concerned, the Charter stipulates that every worker of the SADC region shall at the time of retirement be able to enjoy resources affording him or her a decent standard of living, including equity in post-employment security schemes.168 With regard to the latter, the Charter determines that such a person shall be entitled to adequate social assistance to cater specifically for basic needs including medical care.169 Persons with disabilities are also given priority. Member states are required to ensure that persons with disabilities, irrespective of the origin and nature of their disablement, are entitled to comprehensive additional concrete measures aimed at improving their social and professional integration.170

164 Article 11(a).165 The Charter refers to the SADC Treaty and recalls the objectives contained in article 5 of the SADC

Treaty.166 Article 6(c).167 Article 7.168 Article 8(a).169 Article 8(b).170 Article 9.


National tripartite institutions and existing SADC regional structures have been tasked with the implementation of the SADC Charter.171 Article 16(2) stipulates that these institutions and structures must promote social legislation and equitable growth within the region and prevent non-implementation of the Charter. All member states are required to submit regular progress reports to the annual tripartite sectoral meeting – the most representative organisation of employers and workers must be consulted in the preparation of the report.

5.2.3 SADC Code on Social Security

The Code on Social Security in SADC was approved in 2007 by the Ministers and Social Partners and recommended to the Integrated Committee of Ministers (which is responsible for policy direction planning and implementation) for adoption. Article 17 of the Code, which deals with migrants, foreign workers and refugees, states that:172

Member states should ensure that all lawfully employed immigrants are protected through the promotion of the following core principles. These principles should be contained in both the national laws of member states and in bi- or multilateral arrangements between member states:

(a) Migrant workers should be able to participate in the social security schemes of the host country.

(b) Migrant workers should enjoy equal treatment alongside citizens within the social security system of the host country.

(c) There should be an aggregation of insurance periods and the maintenance of acquired rights and benefits between similar schemes in different Member States.

(d) Member States should ensure the facilitation of exportability of benefits, including the payment of benefits in the host country.

(e) Member States should identify the applicable law for purposes of the implementation of the above principles.

(f) Member States should ensure coverage of self-employed migrant workers on the same basis as employed migrants.

The Code on Social Security therefore encourages member states to ensure that all lawfully employed immigrants173 are protected through the promotion of certain core principles.174 In terms of two of these principles migrant workers should, firstly, be able to participate in the social security schemes of the host country175 and, secondly, enjoy equal treatment alongside citizens within the social security system of the host country.176

171 Article 16(1). 172 Article 17(2).173 As well as self-employed migrant workers – article 17.2(f).174 Article 17 of the Code.175 Article 17.2(a).176 Article 17.2(b).


Member states are further encouraged to introduce, by way of national legislation and bi- or multilateral arrangements, cross-border coordination principles – such as maintenance of acquired rights, aggregation of insurance periods, and exportability of benefits.177

The Code further suggests that illegal residents and undocumented migrants should be provided with basic minimum protection and should enjoy coverage according to the laws of the host country.178 As regards refugees it stipulates that social protection extended to them should be in accordance with the provisions of international and regional instruments.179

5.2.4 Draft Protocol on the facilitation of Movement of Persons

Article 22(1) of the SADC Treaty provides for member states to conclude a series of protocols to address the objectives in article 5 of the Treaty. These protocols are to be negotiated by member states and after approval by the Summit become an integral part of the Treaty. Human resource development and social welfare are some of the areas identified in article 21(4) of the Treaty that have direct implications for social security within southern Africa.

Various Protocols have been concluded that provide for regional cooperation in a number of priority areas. The Protocol with the largest potential impact on social security (and social security coordination and harmonisation) in the SADC region is arguably the still-to-be-ratified Protocol on the Facilitation of Movement of Persons. The Draft Protocol on the Facilitation of Movement of Persons in the SADC was first drafted in 1995 as the Draft Protocol on Freedom of Movement of Persons in the SADC. The proposals for the Protocol first emerged from a SADC workshop in 1993, and a meeting of the SADC Council of Ministers in 1994.

The 1995 Draft Protocol on Freedom of Movement of Persons was based on the clear vision of a region with a shared history (including free movement of persons before colonial conquest) and a future where capital, goods and people could move freely across national borders.180 The Draft Protocol aimed for the gradual abolition of barriers to movement across national borders of SADC member states. Article 3 of the Protocol cited its ultimate objective as the progressive elimination of all controls on SADC citizens, bringing about free movement of people within a projected ten years. The free movement

177 Article 17.2(d) and (e). This is also made clear as far as pension arrangements in the region are concerned. According to article 10.5: “Member States should aim at achieving equality of access, as well as the maintenance and aggregation of social security contributions and benefits and the aggregation of insurance periods on a cross-country basis among Member States, through national laws and bilateral and other arrangements.”

178 Article 17.3.179 Article 17.4.180 Perbedy, S. and Crush, J. “Histories, realities and negotiating free movement in Southern Africa”

in Picoud, A. and Guchteneire, P. Migration Without Borders: Essays on the Free Movement of People (UNESCO Publishing/Berghahn Books 2007) 187.


of persons was seen as being a corollary of the drive towards the interdependence and integration that are among the core tenets of the SADC Treaty.

The Draft Protocol proposed a three-phase process towards free movement of persons.181 In the first phase (within 12 months of its adoption), there was to be visa-free entry from one member state to another for visits of up to six months provided that the traveller has valid travel documents and enters through an official border post. In the second phase (within three years) any SADC citizen would have the right to reside in another member state in order to take up employment, and to enter freely for the purpose of seeking employment. In the third and final phase (within five years) states would abolish all restrictions on the freedom of establishment/permanent residence of citizens of other member states in their territory. When SADC Ministers of Home Affairs met in 1996 to discuss the Draft Protocol, Botswana, Namibia and South Africa opposed it.

Some of the weaknesses of the Draft Protocol included the fact that the Protocol failed to take the socio-economic reality of the region into account.182 It was premised on the assumption that the free movement of people would ultimately lead to the interdependence and integration of our national economies for the harmonious, balanced and equitable development of the region.183 However, while the aims of the Protocol might be capable of realisation in a region where national economies are of similar relative size and capacity, the SADC region is currently typified by a range of diverse economies. Therefore, a regional brain drain would probably result from intra-regional free movement, with both skilled and unskilled labour flocking to countries with relatively developed economies such as Botswana, Mauritius, Namibia and South Africa. Thus, far from resulting in a more equitable regional development, integration could simply result in widening disparities between the core and the periphery within the region. In addition, the final phase of the Protocol which sought to eliminate all internal borders within the region would not only require extensive planning and cooperation (not catered for in the Protocol) with regard to strengthening the external borders of the region, but it would also require some form of centralised database through which the movements of people in the region could be tracked.184

In view of such opposition, the SADC Secretariat revised the Draft Protocol and introduced the Draft Protocol on the Facilitation of Movement of Persons 1997. It recognises that the full popular participation in the process of building the region into a community is only possible where the citizens of the Community enjoy freedom of movement of persons, namely visa-free entry, residence and establishment in the

181 ibid.182 Solomon, H. “Towards the Free Movement of People in Southern Africa?” ISS Papers No 18 (March

1997).183 Preamble to the Draft Protocol.184 Solomon, H. “Towards the Free Movement of People in Southern Africa?” ISS Papers No 18 (March

1997).


territories of member states.185 It suggests a phased approach, whereby these objectives are incrementally and progressively attained. Two important general principles relating to residence and establishment in other member states are contained in the Protocol: the equal enjoyment in principle of freedoms and privileges enjoyed by citizens of the particular member state, and the maintenance of rights of residence or establishment acquired in another member state.186

The aim of the revision was to deal with the concerns of member states, without compromising the original objectives and principles of the Free Movement Protocol. It sought to facilitate the movement of citizens of member states within the region by gradually eliminating obstacles which impede such movement; to expand the network of bilateral agreements among member states in this regard, as a step towards a multilateral regional agreement; to cooperate in preventing the illegal movement of citizens of member states and the illegal movement of nationals of third states within and into the region; to cooperate in improving control over external borders of the SADC community; and to promote common policies with regard to immigration matters where necessary and feasible.187

The Draft Protocol also reduced the visa-free entry period from six months to three (visitors can however apply for an extension, subject to the laws of the member state); eliminated the commitment to introduce an SADC passport; and only committed member states to give permanent residence to non-nationals already resident in their territory. It further only committed member states to a progressive reduction in migration control between member states, as opposed to free movement of persons. Article 4 of the Draft Protocol stated that the progressive implementation of the objectives of the Protocol must particularly be guided by economic and other developments in the region and the particular circumstances of each member state, the degree to which control over external borders can effectively be established, as well as the requirement for migrant labour within the region. In addition, it recognised that disparities in the levels of development in the region led to imbalances and large scale population movements within SADC, which, if not addressed, will be to the disadvantage of certain member states.

The Draft Facilitation Protocol was tabled at the Council of Ministers meeting in Maputo in January 1998. The Council deferred discussion of the Protocol to afford member states time to review the revised Protocol. The Protocol was again discussed at the Council of Ministers meeting in September 1998. Botswana, Namibia and South Africa again

185 Preamble; art 3.186 Chapter IX; arts 22-23.187 Article 2 of the Draft Protocol on the Facilitation of Movement of Persons in the SADC (1997).


expressed concerns. Member states were therefore asked to consult internally and give feedback to the Chairman of the Council.188

The final Draft Protocol was presented to the Council of Ministers in August 2005 after a further revision. Six countries, including South Africa, signed the Draft Protocol. Three more signatures are required for the Draft Protocol to be ratified, after which member states will need to proceed with their national ratification procedures.189 In all, the Draft Protocol adopts a flexible approach, with undefined timeframes, and is subject to national laws.190 It encourages member states to conclude bilateral agreements to facilitate movement of persons.191 Applications for residence permits will also be processed much more expeditiously after the protocol comes into force.192 The protocol provides for those who are seeking permission to perform a legal economic activity or business or those who want to practise a profession, for instance as a lawyer or doctor, in a fellow member state.

5.2.5 Protocol on Gender and Development

The Protocol on Gender and Development was signed in August 2008. The objectives of the Protocol are to:193

Provide for the empowerment of women, to eliminate discrimination and to achieve ��gender equality and equity through the development and implementation of gender responsive legislation, policies, programmes and projects;Harmonise the implementation of the various instruments to which SADC member ��states have subscribed to at the regional, continental and international levels on gender equality and equity, which include the Convention on the Elimination of all Forms of Discrimination Against Women (1979); the Convention on the Rights of the Child (1989); the International Conference on Population and development (1994); the Beijing Declaration and its Platform For Action (1995); the SADC Declaration on Gender and Development (1997) and its Addendum (1998); the Millennium Development Goals (2000); the UN Security Council Resolution 1325 on Women, Peace and Security (2000); the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003); the United Nations Convention on the Rights of People with Disabilities (2008); or any other legal instruments that may be relevant to this Protocol, in order to accelerate implementation;

188 Perbedy, S. and Crush, J. “Histories, realities and negotiating free movement in Southern Africa” in Picoud, A. and Guchteneire, P. Migration Without Borders: Essays on the Free Movement of People (UNESCO Publishing/Berghahn Books 2007) 189.

189 ibid 190.190 Article 10.191 Articles 13 and 14.192 Article 17.193 Article 3.


Address emerging gender issues and concerns;��

Set realistic, measurable targets, timeframes and indicators for achieving gender ��equality and equity;Strengthen, monitor and evaluate the progress made by member states towards ��reaching the targets and goals set out in this Protocol; andDeepen regional integration, attain sustainable development and strengthen ��community building.

The Protocol lays down guiding principles for its implementation.194 It requires state parties to harmonise national legislation, policies, strategies and programmes with relevant regional and international instruments related to the empowerment of women and girls for the purpose of ensuring gender equality and equity. State parties are also required to decide all matters relating to the implementation of the Protocol by consensus, and to cooperate in facilitating the development of human, technical and financial capacity for the implementation of the Protocol. State parties are further compelled to adopt the necessary policies, strategies and programmes such as affirmative action to facilitate the implementation of the Protocol. Affirmative action measures shall be put in place with particular reference to women and girls, in order to eliminate all barriers, which prevent them from participating meaningfully in all spheres of life.

In terms of Article 4, state parties undertake to endeavour, by 2015, to enshrine gender equality and equity in their Constitutions and ensure that these rights are not compromised by any provisions, laws or practices. Member states also undertake to implement legislative and other measures to eliminate all practices which negatively affect the fundamental rights of women, men, girls and boys, such as their right to life, health, dignity, education and physical integrity.

State parties also undertake to put in place affirmative action measures with particular reference to women in order to eliminate all barriers, which prevent them from participating meaningfully in all spheres of life, and to create a conducive environment for such participation.195 State parties are further expected to review, amend and or repeal all laws that discriminate on the ground of sex or gender by 2015; and to enact and enforce legislative and other measures to ensure equal access to justice and protection before the law; abolish the minority status of women by 2015; eliminate practices which are detrimental to the achievement of the rights of women by prohibiting such practices and attaching deterrent sanctions thereto; and eliminate gender-based violence.196

The Protocol enjoins state parties to enact and enforce legislation to ensure that a widow shall have access to employment and other opportunities to enable her to make

194 Article 2.195 Article 5.196 Article 6.


a meaningful contribution to society.197 States parties must, by 2015, review, amend and enact laws and policies that ensure women and men have equal access to wage employment in all sectors of the economy.198 They must also review, adopt and implement legislative, administrative and other appropriate measures to ensure equal pay for equal work and equal remuneration for jobs of equal value for women and men; the eradication of occupational segregation and all forms of employment discrimination; the recognition of the economic value of, and protection of, persons engaged in agricultural and domestic work; and the appropriate minimum remuneration of persons engaged in agricultural and domestic work.199

State parties must further enact and enforce legislative measures prohibiting the dismissal or denial of recruitment on the grounds of pregnancy or maternity leave; provide protection and benefits for women and men during maternity and paternity leave; and ensure that women and men receive equal employment benefits, irrespective of their marital status including on retirement.200

The implementation of the SADC Protocol on Gender and Development would have an impact on the social security position of women in the region. Social security coverage in the SADC region often excludes the most vulnerable, in particular those in rural areas. In addition, some national social security laws and practices have the effect of excluding certain categories of persons from the ambit of their protection. An example is the Compensation for Occupational Injuries and Diseases Act in South Africa, which excludes from occupational injury protection domestic employees employed as such in a private household.201 Kasente remarks that:

It is fair to conclude that women’s and men’s relationship with formal social security has historically been gendered. Most prominently, eligibility is established in ways, which restrict women’s participation. With few exceptions, formal social security schemes in the region apply only to wage earners and sometimes even exclude certain types of work. Professions and livelihoods related to handicrafts, small enterprises, agriculture and domestic service are excluded. This is a serious issue: the majority of vulnerable people who would need social security are to be found in the types of work that have been excluded, particularly in agriculture.202

197 Article 10(1)(d).198 Article 19(1).199 Article 19(2).200 Article 19(3)-(5).201 S 1 of the COIDA. 202 Kasente, D. “Gender and social security reform in Africa” Paper presented at the SADC Social

Security Specialists Conference on Gender and social security in the SADC-region held on 5–7 July 2006 in Windhoek, Namibia, 9.


Considering the large number of women in many of these categories, that the poor (at least in South Africa) are to a large extent made up of women and children in rural areas,203 and that women represent a smaller proportion of the formal labour force in (southern) Africa,204 the Protocol will go a long way in beginning to improve access of (migrant) women to the labour market, and the related social security benefits.

5.3 international standards

International law instruments are influential in the development of a legal framework of social security for non-citizens. Several international agreements in the area of socio-economic rights generally and labour law and social security specifically have been ratified by a number of countries in the SADC region. Many SADC countries have ratified most of the important UN instruments that impact on social rights. For example, the UN International Covenant on Economic Social and Cultural Rights (ICESCR) has been ratified or acceded to by no fewer than 12 SADC member states.205 South Africa signed the ICESCR in 1994, but has yet to ratify it. All the SADC countries have ratified the UN Convention on the Rights of the Child (CRC) of 1989.206 Countries such as South Africa have also become party to UN treaties in the area of the protection of refugees. Some of the provisions of these treaties deal with social security issues.207 However, only Lesotho has ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990,208 which entered into force in 2003. Seychelles is another SADC member state that has acceded to the Convention. 209

203 See Olivier, M.P. and Kalula, E.R. “Scope of Coverage” in Olivier, M.P. et al Social Security: A Legal Analysis (LexisNexis Butterworths 2003) 123-147.

204 Kasente, D. “Gender and social security reform in Africa” 9.205 According to information obtained from the relevant UN Website (http://treaties.un.org/Pages/

ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en) on 1 April 2010, the following SADC countries have already ratified the ICESCR: Angola, DRC, Lesotho, Malawi, Madagascar, Mauritius, Namibia, Seychelles, Swaziland, Tanzania, Zambia and Zimbabwe.

206 According to information obtained from the relevant UN Website (http://www.ohchr.org/english/ countries/ratification/11.htm) on 13 August 2009.

207 uN Convention relating to the Status of Refugees – 28 July 1951 (South Africa acceded on 12 January 1996); uN Protocol relating to the Status of Refugees – 31 January 1967 (South Africa acceded on 12 January 1996); and OAu Convention Governing Specific Aspects of Refugee Problems in Africa – 10 September 1969 (South Africa signed the Instrument of Accession on 15 December 1995 – the Instrument of Accession was deposited on 15 January 1996).

208 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990).

209 Information obtained from the relevant UN Website (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang= en) on 1 April 2010.


Several ILO Conventions in specific areas of social security have been ratified by a range of SADC member states, for example on workers’ compensation,210 occupational health and safety,211 and unemployment.212 A few countries have ratified migration-related Conventions, which affect the area of social security as well.213 However, with the possible exception of ILO Convention 176 of 1995 on Safety and Health and Mines, virtually all the other ratified social security-specific Conventions date back to many years ago, in fact to the pre-World War II era: SADC members have not kept pace with most of the modern ILO Conventions on social security.214

In addition to SADC countries signing various international social security standards, there are specific references to the role of international law in their constitutions and statutory instruments. SADC national Constitutions sometimes make provision for the role of international law, revealing their understanding of the need for and importance of international instruments. Examples are the Malawian215 and South African Constitutions,216 which evince an international law-friendly approach.217 These Constitutions also require the consideration of international law in the interpretation of the relevant constitutional rights and the supporting legislative framework.218

Social security statutory instruments also include references to international law. For example, section 4(c) of the Lesotho Labour Code provides that in interpreting

210 E.g. Conventions 12 of 1921, 17 of 1925, 18 of 1925, Equality of Treatment (Accident Compensation) Convention 19 of 1925 (12 members), 42 of 1932; Discrimination (Employment and Occupation) Convention 111 of 1958.

211 E.g. Convention 176 of 1995.212 E.g. Convention 2 of 1919.213 ILO Conventions 97 and 143 have been ratified by only two SADC countries, namely Malawi and

Zambia: see also Kanyenze, G. African Migrant Labour Situation in Southern Africa (Paper presented at the ICFTU-AFRO Conference on “Migrant Labour”, Nairobi, 15-17 March 2004) 19.

214 E.g., only one SADC country (DRC) ratified ILO Convention 121 of 1964 on Employee Injury Benefits.

215 S 44(2) of the Malawi Constitution.216 Ss 231-233 of the South African Constitution.217 E.g., s 233 of the South African Constitution provides that “… when interpreting any legislation,

every court must prefer any reasonable interpretation of the legislation that is consistent with inter-national law over any alternative interpretation that is inconsistent with international law.” Also, the general limitation clause of the Constitution (s 36) itself imparts an international and comparative law friendliness in its requirement that a right “may be limited … to the extent that the limitation is reason-able and justifiable in an open and democratic society based on human dignity, equality and freedom.”

218 See s 11(2) of the Malawi Constitution and s 39(1)(b) of the South African Constitution, which stipulates that a court, tribunal or forum must, when interpreting the Bill of Rights, consider international law. According to the Constitutional Court decision in S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC) par 35, quoted with approval in Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC), in the context of this provision, public international law would include non-binding as well as binding law.


provisions of the Code, and in cases of ambiguity, the court should take into account ILO Conventions, irrespective of whether or not Lesotho has ratified them. Section 3(c) of the South African Labour Relations Act219 66 of 1995 also stipulates that any person applying the Act must interpret its provisions in compliance with the public international law obligations of the Republic. In some cases provisions in the laws themselves may be based on specific international instruments, or drafted in a manner, which gives effect to international obligations.220

Where the Constitution and/or the relevant social security law(s) provides for an international law-friendly approach, court judgments would reflect this particular approach. For example, the South African courts have not hesitated to invoke the provisions of international instruments when interpreting fundamental rights, including those rights that have a socio-economic character.221 The same is true of the courts in Lesotho.222

However, SADC countries have generally failed to ratify the main social security Conventions, in particular the Social Security (Minimum Standards) Convention 102 of 1952. They have also not ratified most of the post-World War II social security conventions. The ILO Convention 102 of 1952 on minimum standards in social security has only been partly ratified by the DRC.223 SADC member states have also not ratified international standards on the portability of social security. Some of these include the ILO Migration for Employment Convention (Revised) 97 of 1949 (4 members);224 ILO unemployment Convention 2 of 1919 (3 members);225 ILO Equality of Treatment (Social

219 LRA 66 of 1995.220 E.g., as noted by the Lesotho country reporter, s 79 of the Labour Code Order 1992 and s 8 of the

Labour Code (Amendment) Act of 1997 have been couched in line with the provision of art 12(1)(a) of the ILO Convention 158 of 1982 on termination of employment. Similarly, s 1(b) of the South African Labour Relations Act states that one of the primary objects of the Act is to give effect to obligations incurred by the Republic as a member state of the ILO.

221 See in particular Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC): the court referred extensively to international law instruments, especially the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the General Comments of the Committee on Economic, Social and Cultural Rights (UNCESCR) for purposes of interpreting s 26(2) (limitations in respect of the right to access to housing) and s 27(2) (limitations in respect of the right to access to, amongst others, social security) and the manner in which the courts are prepared to enforce socio-economic rights.

222 Referring to the Labour Court case of Labour Commissioner v HWV LC/144/95. In this case, the applicant sued the respondent for suspending her from work for unauthorised absence from work, whereas the applicant had delivered a valid sick leave certificate certifying that the applicant would be unable to report for work, as she had to take care of her sick child. The court held the suspension to be unfair and relied on Convention No. 156 of the ILO on workers with family responsibilities.

223 In 1987 (Parts V, VII, IX and X).224 Madagascar, Malawi, Mauritius and Zambia (http://www.ilo.org/ilolex/english/convdisp1.htm

(accessed 1 April 2010). 225 Mauritius, Seychelles and South Africa (http://www.ilo.org/ilolex/english/convdisp1.htm

(accessed 1 April 2010).


Security) Convention 118 of 1962 (2 members);226 and ILO Maintenance of Social Security Rights Convention 157 of 1982 (which has not been ratified by a single member state).227 The Conventions on migrant labour call for equality of treatment, that is, for migrants to be subject to the same eligibility rules and receive the same levels of employment injury compensation as the national work force. They also call for reciprocal agreements among governments to ensure that migrants can receive compensation either at home or abroad. These principles assist in rethinking SADC countries’ legislation and immigration policies.

6. fACtorS AffECtiNG NoN-CitiZENS’ ACCESS to SoCiAL-SECUritY iN SADC

6.1 impact of migration and socio-economic contexts

SADC migrants’ access to social security is further restricted as a result of the nature of migration and the socio-economic context of the SADC region. The socio-economic, labour market and poverty context of the SADC region implies that many of those who migrate are the poor, and they migrate as undocumented foreigners.228 In terms of access to social protection, it is clear that:

… as a result of their immigration status and the operation of social security laws and policies, they are unlikely to be accommodated within the social security framework of the host country. Furthermore, such migrants invariably are not able to accrue social security entitlements in their home country, which potentially could be transferred

226 Democratic Republic of the Congo and Madagascar. 227 The Maintenance of Social Security Rights Convention No. 157 of 1982 completes the international

framework for the protection of the social security rights of migrant workers begun by Convention No. 118. Convention No. 157 builds on the provisions of Convention No. 118 regarding totalising and export of benefits, and it introduces provisions for determining the applicable legislation and administrative assistance. Convention No. 157 guarantees the export of old age, invalidity and survivors’ benefits and cash employment injury benefits to nationals of the ratifying countries and to refugees and stateless persons. Convention No. 157 requires that benefits paid by a country to persons in another country be adjusted (increased) according to the same rules as those applicable to benefits paid within the paying country. A country can make the adjustment of its benefits paid abroad subject to the conclusion of a social security agreement providing for such adjustments. The Convention further requires the use of ‘third-state totalising’ when this is necessary to determine the eligibility for a benefit of a person who has been subject to the social security systems of three of more countries that have ratified the Convention. An annexure to the Maintenance of Social Security Rights Recommendation, 1983 (No. 167) contains model provisions for a bilateral or multilateral social security agreement. See also McGillivray, W. “Strengthening social protection for African migrant workers through social security agreements” (Background report prepared for the MIGSEC project on “Extending social security to African migrant workers and their families” ILO, Geneva February 2009).

228 Oliver MP “Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)” Paper presented at an International Conference on Migration and Social Protection: Exploring Issues of Portability and Access held at the University of Sussex, 5-6 Nov. 2008.


or taken into account within the framework of the social security system of the host country, if such possibilities were in existence. This also flows from the fact that these categories of migrants often participate in the informal economy, both in the home and host country, and therefore fall outside the purview of the essentially formal employment-based framework of (social) protection available in most of the SADC countries.229

Most social security schemes in the region focus on those people who are employed in the formal sector, which represents a small and in some cases a declining percentage of the total population and of the labour force. In the case of South Africa, the social insurance system covers mostly people in formal employment. The self-employed, the informally employed, and several categories of the atypically employed are for all legal purposes excluded from the South African social insurance system – with the notable exception of the Road Accident Fund scheme.230 In the area of social assistance no universal coverage exists, as a needs-based and categorical approach is followed. People who do not fall within one of the categories covered by the social assistance system are excluded. Effectively this means that those who are not old enough, young enough, or disabled enough, although they are poor, are excluded.

Social security is further limited, as some countries cover only certain categories of the formally employed, such as civil servants.231 In the SADC region, the majority of the population live and work on the edge of poverty; formal sector employment is limited and declining.232 Therefore, social security is seen as serving the interests of the working elite, and not reaching out to the vast majority who are excluded and marginalised.

As stated earlier, social security in SADC is also gender biased, as female migrants in the SADC region are less likely to be in formal employment and more likely to be engaged in informal economic activity.233 In addition, some national social security laws and practices have the effect of excluding certain categories of persons from the ambit of their protection.234

The fact that most categories of migrants often participate in the informal economy, the rise in informal sector employment and in unemployment, and the proportion of the

229 ibid.230 Notably compensation for workplace injuries and diseases and unemployment insurance. 231 Olivier, M.P. “Acceptance of social security in Africa” Paper presented at the 5th ISSA Africa

Regional Conference on Social Security, Lusaka, Zambia (10-14 Aug. 2005) 5-6.232 Fultz, E. and Pieris, B. Social Security Schemes in Southern Africa: An Overview and Proposals for

Future Development (ILO 1999) 7-12.233 Female migrants are more commonly found in occupations such as trading, domestic service, informal

sector production and agricultural, manual and ‘other service’ work. See Dodson, B. et al Gender, Migration and Remittances in Southern Africa Southern African Migration Project (SAMP) Migration Policy Series No. 49 (2008) 4.

234 COIDA in South Africa, which excludes from occupational injury protection, domestic employees employed as such in a private household. See s 1 of COIDA.


labour force in the formal sector mean that ensuring access only to formal sector workers (formal sector migrant workers being an even smaller number) at the expense of the vast majority who are either informally employed or unemployed is inherently unjust. It directs the attention of governments and other stakeholders away from a huge segment of the (migrant) population with no or little social security coverage. This implies that efforts should be focused on extending social protection coverage to workers in the informal sector and other non-standard workers.

Internationally and in other regions/jurisdictions, social protection coverage has been extended to these groups. International standards extend labour law and social security protection to informal sector workers and non-standard workers. However, few SADC countries have ratified these conventions.235 ILO Conventions that also protect the atypically employed include the following:

Source: ILOLEX (as on 27 January 2011).

235 For further discussion, refer to Smit, N. and Fourie, E. “Perspectives on extending protection to atypical workers, including workers in the informal economy, in developing countries” 2009 TSAR 516.

Convention Ratifications SADC Ratifications

The Part-Time Work Convention 175 of 1994 13 Mauritius

Homework Convention 177 of 1996 7 x

The Maternity Protection Convention 183 of 2000 18 x

Workers with Family Responsibilities Convention 156 of 1981 41 Mauritius

The Rural Workers’ Organisations Convention 141 of 1975 40 Zambia

Indigenous and Tribal Peoples Convention 169 of 1989 22 x

Freedom of Association and the Right to Organise Convention 87 of 1948 150 All SADC countries.

The Right to Organise and Collective Bargaining Convention 98 of 1949 160 All SADC countries.

Occupational Safety and Health Convention 155 of 1981 56 South Africa, Seychelles, Lesotho and Zimbabwe

Discrimination (Employment and Occupation) Convention 111 of 1958 169 All SADC countries.

The Equal Remuneration Convention 100 of 1951 168

Angola, Botswana, DR Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

x = not yet ratified.


6.2 overly strict immigration policies

Immigration laws have an impact on the social security and other rights of non-citizens. Immigration law is used as a tool to regulate and control access and entitlement to social security in the host country. Immigration law often over-rides provisions for free movement, as well as provisions on the personal scope of coverage of social security schemes relating to non-citizens. In the SADC region, immigration policies in SADC focus on control and deportation, and not on freedom of movement, regional integration and proper respect for the human rights of affected migrants.236

Entitlement to benefits is sometimes linked to the immigration status of the worker. Legal residence may be required and may be subject to the requirement that the non-citizen worker does not become a burden on the state. In South Africa, for example, immigration legislation has always been a tool to determine who is allowed into the country and on what terms.237 The Immigration Act238 regulates non-citizens’ entry and residence into South Africa. The Act distinguishes between permanent and temporary residence. In terms of section 9(4)(b) of the Act, a non-citizen may only enter and remain in the country if he or she is in possession of a permanent residence permit; or one of the 14 different kinds of temporary residence permits. Some of these include the visitors’/tourists’ permit, the work permit, the study permit and business permit. A temporary residence permit is issued on condition that the non-citizen is not, or does not become, a “prohibited or undesirable person” as defined in sections 29 and 30 of the Act.

Certain categories of migrant workers face further difficulties with regard to social security coverage and entitlement to benefits as a result of their immigration status. More often legal migrants, most of whom are skilled workers, get decent treatment from employers and they generally enjoy full protection of the law, and access to social security.239 While on the other hand treatment of some categories of migrants is characterised by exploitation and violation of their fundamental human rights. This is particularly so with respect to illegal migrants, as they are often employed in precarious forms of jobs shunned by locals due to harsh working conditions, low pay and status, and little protection in the labour market. Employers exploit their “illegal” status, threatening to expose them whenever they agitate

236 Olivier, M.P. “Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)” Report commissioned by the World Bank, April 2008, 4.

237 Perbedy, S. “A Brief History of South African Immigration Policy” in Crush, J. and Veriava, F. (eds.) Transforming South African Migration and Immigration Policy (Southern African Migration Project 1997).

238 South African Immigration Act 13 of 2002. 239 E.g. access to South Africa social insurance, save for the road accident scheme, is premised on

one being “an employee”. For a person to be considered an employee, he or she must have a valid contract. A non-citizen’s contract of employment was generally considered invalid unless he or she had a valid work permit. This position has now been altered by the Discovery case (supra).


for improved working conditions. In this regard, employers have a hold over them, and this renders them even more vulnerable.240

Olivier has remarked that SADC countries and regional policy frameworks pertaining to migration and the position of migrants, particularly in the host country context, need to factor in the deeply entrenched and circular nature of SADC migration; the fact that intra-SADC movement is mainly from SADC countries; and the precarious position of migrants and their dependants. Wrong and overly restrictive policy choices may have a devastating effect on household survival and poverty in the region.241 In this respect, see also Reitzes, who asserts that:

Restrictive policy interventions that fail to acknowledge migration linkages between sending and receiving countries are likely to depend on coercive measures rather than on consensus. They would disrupt and dislocate survival networks, generating increased poverty by severing the economic lifelines on which many migrants and their dependants rely for survival. No historical linkages existed between labour-receiving countries in Western Europe and the sending countries from which they recruited and imported their labour. Despite this, … once migration linkages were established they could not be broken, and governments found it impossible to reverse migration flows.242

It is therefore imperative for countries to formulate appropriate policies to curb irregular migration and illegal employment by ensuring minimum standards of protection, including basic human rights for all migrant workers. This is more so because migrants, whatever their status, contribute skills, labour, knowledge and initiative to the progress of host countries.243

6.3 Limited statutory provision for social security portability

Few SADC national laws make provision for the conclusion of social security agreements and the portability of benefits. Where this is the case, these instruments provide the legal framework reciprocal agreements. Examples include South Africa’s Compensation for Occupational Injuries and Diseases Act (COIDA),244 and the Swaziland Provident Fund Order.245

240 Kanyenze, G. “African migrant labour situation in Southern Africa” (Paper presented at the ICFTU-Afro Conference on ‘Migrant Labour Nairobi, 15-17 March 2004.

241 Olivier, M.P. “Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)” Report commissioned by the World Bank, April 2008, 10-14.

242 Reitzes, M. Regionalizing International Migration: Lessons for SADC (Migration Policy Brief No. 11) (SAMP (Southern African Migration Project)) 18.

243 Baruah, N. and Cholewinski, R. Handbook on establishing effective Labour Migration policies in countries of Origin and destination (ILO, Geneva 2006) 12.

244 COIDA provides a system of no-fault compensation for employees who are injured in accidents that arise out of and in the course of their employment or who contract occupational diseases.

245 Swaziland Provident Fund Order of 1974.


Section 94 of COIDA permits arrangements to be made with other countries regarding compensation. It provides as follows:

The Minister may by notice in the Gazette issue directions to give effect to the provisions of any agreement between the Republic and any other state in which provision is made for reciprocity in matters regarding compensation to employees for accidents resulting in disablement or death, including directions:

(a) to determine in any case where an employee is entitled to compensation both in terms of this Act and in terms of the law of any such state under the law of which party such employee or his dependants shall be entitled to recover compensation; and

(b) to authorise the Director-General to allow evidence taken in any such state, and to obtain and take evidence for use in such state or for the facilitation of proceedings for the recovery of compensation in terms of the law of any such state.

In addition, in terms of section 60 of COIDA, an employee or dependant of an employee who is resident outside the Republic or is absent from the Republic for a period(s) of more than six months, and to whom a pension is payable, can be awarded a lump sum, instead of a monthly pension. Such an arrangement makes it possible for a fixed-term contract worker to receive his or her unemployment benefits upon departure from the Republic. Also, South African benefits may be remitted through government-to-government agreements or through major recruitment agencies.

Section 45(1) of the Swaziland Provident Fund Order provides that:246

The Government may enter into a reciprocal agreement with the government of any other country in which a fund or scheme similar to the Fund has been established, and there may be included in the agreement that:

any period of membership of such fund or scheme in the country of such government may be treated as a period of membership of the Fund and vice versa.

In addition, even some non-contributory schemes also foresee conclusion of social security agreements. Section 2(1) of the South Africa’s Social Assistance Act extends coverage to non-citizens in the event of a bilateral agreement and provides expressly for this. This points to recognition by some member states of the need for, as well as the importance and possibility of, bi- and/or multilateral instruments in regulating cross-border social security issues.

7. CoNCLUSioNS AND rECoMMENDAtioNS

The social security coverage of non-citizens in the SADC region is restricted. This can be attributed to various factors, including socio-economic, labour market and poverty contexts of intra-SADC migrants, restrictions contained in the legal system and policy

246 See Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Swaziland Country Report” (A Report to the Southern Africa Trust, 2009).


framework of SADC member states, the formal sector bias of most SADC social security systems, the adverse impact of immigration law on the social protection status of migrants, the non-ratification and/or non-enforcement of international social security standards, and the absence of bi- and multilateral social security coordination arrangements within the region. Extending social security protection to migrant workers within SADC would therefore require the examination and elimination of these and other obstacles to social security coverage.

7.1 Extension of social security protection to the atypically employed and those working in the informal economy

It is clear that the vast majority of persons who migrate in SADC are the poor and undocumented. They are unlikely to be accommodated within the social security framework of the host country except for so-called emergency situations. This will be the case due to their undocumented status, and since these categories of migrants often participate in the informal economy, both in the home and host country, and therefore fall outside the purview of the essentially formal employment-based framework of social protection, they are not able to accrue social security entitlements.

Special arrangements are required to ensure social security coverage for these categories. Such arrangements will extend coverage to persons who cannot be covered in the formal social security systems. It will further ensure gender parity in social security access, in view of the predominance of females in the informal sector. In various countries and regions around the world, modalities for the extension of social security protection to the atypically employed have been investigated and/or applied with relative success.247

247 See e.g. the following: Bertranou, F.M. Informal Economy, Independent Workers and Social Security Coverage in Argentina, Chile and uruguay International Labour Office (November 2007); ILO World Labour Report 2000 (ILO 2000), Gillion, C. et al (eds.) Social Security Pensions: Development and Reform (ILO 2000), Help Age International Non-contributory pensions and poverty prevention: A comparative study of Brazil and South Africa (Dec. 2003), Van Ginneken, W. Extending social security: Policies for developing countries ESS Paper No 13 (ILO, 2003), Van Ginneken, W. (ed.) Social security for the excluded majority: Case studies of developing countries (ILO 1999), Van Ginneken, W. Social security for the informal sector: Issues, options and tasks ahead (ILO 1996), Bailey, C. Extending social security coverage in Africa (ILO 2004), Dau, R.K. Social security coverage through micro-insurance schemes in Tanzania (ILO 2003), Ghai, D. Social security priorities and patterns: A global perspective (IILS 2002), Stenwachs, L. Extending health protection in Tanzania: Networking between health financing mechanisms ESS Paper No 7 (ILO 2002), Chaabane, M. Towards the universalization of social security: The experience of Tunisia ESS Paper No 4 (ILO), ILO Extending social security and fighting poverty: A complex challenge: Experiences from Around the World(undated)(accessed at https://www.ilo.org/public/english/protection/socsec/pol/campagne/files/countryexp.pdf on 13 May 2010), Holzmann, R. “Risks and vulnerability: The forward looking role of social protection in a globalizing world” in Dowler, E. and Mosely, P. (eds.) Poverty and social exclusion in North and South (Routledge, 2002), Olivier, M. and Kaseke, E. Tanzania employment-based social security reform proposals (Report of the technical committee on social security (Report to the Tanzanian Labour Law Reform Task Force – Labour law reform phase II) May 2005, Olivier, M. and Kaseke, E. “Informal social security and formal social security: Developing an integrative approach” (Paper presented at a SADC Social Security Conference, held in Gaborone, Botswana, November 2004), Rao, P.M. Social security for


7.2 the need for bi- and/or multilateral social security agreements

At present there is no multilateral social security agreement in the SADC region. In addition, although some SADC member states have concluded bilateral agreements, these agreements are limited in scope and effect, and are insufficient from a coordination and portability perspective as they are not reciprocal in nature. A multilateral social security agreement; or at the very least, proper bilateral social security agreements are required in the region.

Bilateral and/or multilateral social security agreements (coordination agreements) have been utilised with success in other jurisdictions to extend social protection to migrants.248 These agreements regulate various issues, such as principles of choice of law, non-discrimination, aggregation, maintenance of acquired rights and exportability of benefits. As has been observed:249

The international community has a long standing tradition in protecting the social security of migrants through a network of instruments for the co-ordination of social security schemes. These instruments provide for the equal treatment of national and foreign subjects, for the exportability of certain types of benefits, and for the aggregation of insurance periods fulfilled under different national social insurance schemes. Furthermore, they establish a choice for the competent legislation, which is applicable in transnational situations. However, it appears that these co-ordination instruments can do little to improve the position of migrants within minimum subsistence benefit schemes. Traditionally, they only cover social insurance schemes which are related to a number of internationally recognised social risks, such as sickness, unemployment, invalidity, and old age.

A multilateral or bilateral social security coordination agreement should be negotiated; or the existing labour could be renegotiated to include provisions on social security – including removing any restrictions on social security coverage. Negotiations should also ensure coverage reciprocity; as well the inclusion of public social security schemes. Non-discrimination clauses currently found in SADC regional instruments, some SADC member states’ Constitutions250 and statutory instruments, and tendencies in the

the unorganised in India – An approach paper (accessed at http://www.globalaging.org/health/world/socindia.pdf), “We, the self-employed” – SEWA’S electronic newsletter ( January 2005); Unorganised sector in India Social security and welfare funds (accessed at http://www.labour.nic.in/ss/UNORGANISEDSECTORINDIA), Employees’ Provident Fund Organisation, India (accessed at http://www.epfindia.com/epfbrief/htm); Social Security Division A general overview (accessed at http://www.labour.nic.in/ss/overview.html).

248 E.g., European Community Regulation No 883/2004 of 29 April 2004 (amending European Community Regulation 1408/71) contains a comprehensive regulation on the application of social security schemes to employed persons and their families moving within the European Community. See also the Caribbean Community (CARICOM) agreement on Social Security, which regulates social security between Caribbean Community member states.

249 Vonk, G. De coördinatie van bestaansminimumuitkeringen in de Europese Gemeenschap (Kluwer 1991) 483-484.

250 Such as South Africa and Namibia.


jurisprudential approaches of some national courts (such as South African courts) could form the starting point for any negotiations.

7.3 restrictions in the legal systems on access to social security for some non-citizens

Access to social security by some categories of non-citizens is limited as a result of exclusions in the legislation of the host country. This is the case despite the legal status of such categories.251 The elimination of such discriminatory practices would ensure social security access to certain previously excluded categories. On the other hand, access is also premised on a non-citizen meeting certain conditions, such as lawful immigration status. Although this may be based on an assumption that it will reduce clandestine immigration, there is no evidence that this is the case. Such policies have the effect of making migrants even more vulnerable.252 Based on this premise as well as the imperatives of recent UN Migrant Rights Conventions,253 it is therefore imperative for countries to formulate appropriate policies to curb irregular migration and illegal employment by ensuring minimum standards of protection, including basic human rights for all migrant workers. Emerging jurisprudence from South Africa254 indicates moves towards this direction, and may set a precedent for other SADC states in this regard.

7.4 Ratification and/or enforcement of regional and international standards

The SADC Treaty and all other subsidiary instruments such as the Social Charter and the Social Security Code form the basis for the creation of a new social security regime for SADC migrants. These instruments point towards the creation of a special regime of SADC-wide social security coverage for citizens of the different member states. The SADC Treaty encourages social security coordination.255 In addition, both the Charter and the

251 See, in particular, South Africa’s unemployment Insurance Act 63 of 2001.252 Kanyenze, G. “African migrant labour situation in Southern Africa” (Paper presented at the ICFTU-

Afro Conference on Migrant Labour, Nairobi, 15-17 March 2004.253 The International Convention on the Protection of All Migrant Workers and Members of Their Families

sets out core rights for both documented and undocumented/irregular migrant workers (Articles 8-35). These include the right to life, the right to a fair trial, treatment equal to that of nationals in matters of working conditions, the right to urgent medical care and treatment equal to that of nationals for children’s access to education.

254 See the discussion supra on the South African labour court judgment of Discovery Health Ltd v CCMA.

255 The SADC Treaty enjoins Member States to cooperate with each other in the attainment of the organisations objectives. It requires Member States to coordinate, rationalise and harmonise their overall macro-economic policies and strategies, programmes and projects. This implies that in order to achieve these ideals, a programme of regional integration, collective self-reliance and interdependence of member states is envisaged.


Code advocate the creation of a regime within SADC, which ensures minimum levels of social protection on the basis of equality, regardless of, among other things, citizenship.256

Although SADC countries have generally failed to ratify the main social security Conventions, they have ratified several UN and ILO Conventions in specific areas of social security. For example, SADC member states have ratified conventions on workers’ compensation, occupational health and safety, and unemployment. A few countries have also ratified migration-related Conventions, which have an impact on the right of access of non-citizens to social security. However, the provisions of these treaties are not always applied and enforced. A case in point is the United Nations Convention Relating to the Status of Refugees 1951, which has been ratified by 14 SADC countries. Evidence indicates that most countries have failed to implement the provisions of this convention. International human rights instruments set certain standards with regard to the treatment of non-citizens, and there is need for synergy between these standards and national law and policy as it relates to socio-economic and other rights of non-citizens.

7.5 General portability issues

Given that social security benefits and rights are currently not portable, and given the increased mobility of people, goods and services in the region, SADC countries will have to prioritise this issue in their research, planning and financial agendas. A progressive approach would entail the collection of statistics and information regarding the phenomenon of movement of people within the region, social security benefits available in the different countries, the administrative, social, fiscal and financial barriers presently in existence in countries, and the nature and degree of.

256 In these instruments, no distinction is drawn between citizens and non-citizens; and the Charter makes comprehensive provision for the establishment of harmonised programmes of social security throughout the Region. The Code further encourages member states to protect all lawfully employed immigrants; to introduce, by way of national legislation and bi- or multilateral arrangements, cross-border co-ordination principles; and to provide illegal residents and undocumented migrants with basic minimum protection and coverage according to the laws of the host country. Finally, as regards refugees, social protection extended to them should be in accordance with the provisions of regional and international instruments.

BiBLioGrAphY

Publications Ackson, T. “Access to social services for non-

citizens and the portability of social benefits within the Southern African Development Community (SADC): Tanzania Country Report” (A Report to the Southern Africa Trust, 2009).

Adongo, J. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Namibia Country Report” (A Report to the World Bank 2007).


Bailey, C. Extending social security coverage in Africa (ILO 2004).

Baruah, N. and Cholewinski, R. Handbook on establishing effective Labour Migration policies in countries of Origin and destination (ILO 2006).

Bertranou, F.M. Informal Economy, Independent Workers and Social Security Coverage in Argentina, Chile and uruguay International Labour Office (November 2007).

Bitso, B. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Lesotho Country Report” (A Report to the Southern Africa Trust 2009).

Chaabane, M. “Towards the universalization of social security: The experience of Tunisia” ESS Paper No 4 (ILO) (2002).

CICLASS “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): South Africa Country Report” (A Report to the World Bank 2007).

Crush, J. “Contract migration to South Africa: Past, present and future” accessed at www.queensu.ca/samp on 29 April 2009.

South Africa: New Nation, New Migration Policy? Accessed at http://www.migrationinformation.org/Feature/display.cfm?id=131 (12th April 2007).

Dau, R.K. Social Security Coverage through Micro-insurance Schemes in Tanzania (ILO 2003).

Deerpalsing, N. “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC) – Mauritius Country Report” (A Report to the Southern Africa Trust 2009).

Dlamini, E.L.B. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC):

Swaziland Country Report” (A Report to the Southern Africa Trust 2009).

Dodson, B. et al. Gender, Migration and Re-mittances in Southern Africa Southern African Migration Project (SAMP) Migration Policy Series No. 49 (2008).

Fultz, E. and Pieris, B. Social Security Schemes in Southern Africa: An Overview and Proposals for Future Development (ILO 1999).

Ghai, D. Social Security Priorities and Patterns: A Global Perspective (IILS 2002).

Gillion, C. et al. (eds.) Social Security Pensions: Development and Reform (ILO 2000).

Help Age International Non-contributory Pensions and Poverty Prevention: A Comparative Study of Brazil and South Africa (December 2003).

Holzmann, R. “Risks and vulnerability: The forward looking role of social protection in a globalizing world” in Dowler, E. and Mosely, P. (eds.) Poverty and social exclusion in North and South (Routledge 2002).

ILO Extending Social Security and Fighting Poverty: A Complex Challenge: Experiences from Around the World (Undated). World Labour Report 2000 (ILO 2000).

Jansen van Rensburg, L. Die Beregtiging van die Fundamentele Reg op Toegang tot Sosiale Sekerheid (RAU Johannesburg 2001).

Institute of Policy Research and Social Empowerment (IPRSE) “Access to social services for non-citizens and the portability of social benefits within the Southern Africa Development Community (SADC): Malawi Country Report” (A Report to the World Bank 2007).

Kanyenze, G. “African migrant labour situation in Southern Africa” (Paper presented at the ICFTU-Afro Conference on Migrant Labour Nairobi, 15-17 March 2004).

Kasente, D. “Gender and social security reform in Africa” Paper presented at the SADC Social Security Specialists Conference on Gender and Social Security in the SADC-region held on 5–7 July 2006 in Windhoek, Namibia.


McGillivray, W. “Strengthening social pro-tection for African migrant workers through social security agreements” (Background report prepared for the MIGSEC project on “Extending social security to African migrant workers and their families” ILO, Geneva February 2009).

Mortenson, J. and Sauto, R. (ed.) Cross-Border Portability of Pension Rights: An Important Condition for an Integrated Market for Pension Provision (Workshop proceedings and contributions 28 February – 1 March 2003, Brussels).

Muyembe, M. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Zambia Country Report” (A Report to the World Bank 2007).

Ntseane, D. and Solo, K. “Access to social services for non-citizens and the portability of social benefits within the Southern African Development Community (SADC): Botswana Country Report” (A Report to the World Bank 2007).

Oliver, M.P. “Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)” Paper presented at an International Conference on Migration and Social Protection: Exploring Issues of Portability and Access held at the University of Sussex, 5-6 November 2008.

“Acceptance of social security in Africa” Paper presented at the 5th ISSA Africa Regional Conference on Social Security, Lusaka, Zambia, 10-14 August 2005.

“Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)” Report commissioned by the World Bank, April 2008.

Olivier, M.P. and Kalula, E.R. “Scope of Coverage” in Olivier, M.P., Smit, N. and Kalula, E.R. (eds.) Social Security: A Legal Analysis (LexisNexis Butterworths 2003).

Olivier, M.P. and Kaseke, E. “Informal social security and formal social security: Developing an integrative approach” (Paper presented at a SADC Social Security

Conference, held in Gaborone, Botswana, November 2004).

Tanzania employment-based social security reform proposals (Report of the technical committee on social security (Report to the Tanzanian Labour Law Reform Task Force – Labour law reform phase II) May 2005.

Perbedy, S. “A Brief History of South African Immigration Policy” in Crush J and Veriava F (eds.) Transforming South African Migration and Immigration Policy (Southern African Migration Project 1997).

Perbedy, S. and Crush, J. “Histories, realities and negotiating free movement in Southern Africa” in Picoud A and Guchteneire P Migration Without Borders: Essays on the Free Movement of People (UNESCO Publishing/Berghahn Books 2007).

Rao, P.M. “Social security for the unorganised in India – An approach paper” (accessed at http://www.globalaging.org/health/world/socindia.pdf).

Reitzes, M. Regionalizing International Migration: Lessons for SADC (Migration Policy Brief No. 11) (Southern African Migration Project)(SAMP).

Smit, N. “Employment Injuries and Diseases” in Olivier, M.P., Smit, N. and Kalula, E.R. (eds.) Social Security: A Legal Analysis (LexisNexis Butterworths 2003).

Smit, N. and Fourie, E.S. “Perspectives on extending protection to atypical workers, including workers in the informal economy, in developing countries” 2009 TSAR 516.

Solomon, H. “Towards the Free Movement of People in Southern Africa?” ISS Papers No 18 (March 1997).

Steinberg, J.A. “Mixed Reception: Mozambican and Congolese Refugees in South Africa” Institute for Security Studies (ISS) Monograph No 117, June 2005.

Stenwachs, L. Extending health protection in Tanzania: Networking between health financing mechanisms ESS Paper No 7 (ILO 2002).

Van Ginneken, W. (ed.) Social Security for the Excluded Majority: Case studies of developing countries (ILO 1999).


Van Ginneken, W. Extending Social Security: Policies for developing countries ESS Paper No 13 (ILO 2003).

Social Security for the Informal Sector: Issues, options and tasks ahead (ILO 1996).

Vonk, G. De coördinatie van bestaans-minimumuitkeringen in de Europese Gemeenschap (Kluwer 1991).

“We, the self-employed” – SEWA’S electronic newsletter ( January 2005).

International Agreements and Conventions Agreement between the Government of the Republic of South Africa and the Govern-ment 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 (n 24 December 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 (24 August 1973).Agreement between the Government of the Republic of South Africa and the Government of the Republic of Portugal regulating the employment of Portuguese workers from the Province of Mozambique on certain mines in the Republic of South Africa (1st January 1965).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 (22 August 1975).Agreement between the Governments of the Republic of South Africa and Malawi relating to the employment and documentation of Malawi nationals in South Africa (1 August 1967).Caribbean Community (CARICOM) Agree-ment on Social Security of 1996.Charter of Fundamental Social Rights in the SADC of 2003. Code of Social Security in SADC of 2005.Draft Protocol on the Facilitation of Movement of Persons in the SADC of 2007.European Community Regulation No 883/ 2004 of 29 April 2004 (amending European Community Regulation 1408/71). ILO Social Security (Minimum Standards) Convention 102 of 1952.ILO Discrimination (Employment and Occu-pation) Convention 111 of 1958.ILO Equal Remuneration Convention 100 of 1951.ILO Equality of Treatment (Accident Com-pensation) Convention 19 of 1925. ILO Equality of Treatment (Social Security) Convention 118 of 1962.ILO Freedom of Association and the Right to Organise Convention 87 of 1948.ILO Homework Convention 177 of 1996.ILO Indigenous and Tribal Peoples Convention 169 of 1989.ILO Maintenance of Social Security Rights Convention 157 of 1982.ILO Maintenance of Social Security Rights Re-commendation, 1983 (No. 167). ILO Maternity Protection Convention 183 of 2000.ILO Migrant Workers (Supplementary Pro-visions) Convention 143 of 1975.ILO Migration for Employment Convention (Revised) 97 of 1949.ILO Occupational Safety and Health Con-vention 155 of 1981.


ILO Part-Time Work Convention 175 of 1994.ILO Right to Organise and Collective Bargain-ing Convention 98 of 1949.ILO Rural Workers’ Organisations Convention 141 of 1975.ILO Unemployment Convention 2 of 1919.ILO Workers with Family Responsibilities Convention 156 of 1981.International Convention on the Protection of All Migrant Workers and Members of Their Families of 1990.Malawi/Zambia Social Security Bilateral Agreement of 2003. OAU Convention Governing Specific Aspects of Refugee Problems in Africa – 10 September 1969. Protocol on the Facilitation of Movement of Persons in SADC of 2005.SADC Protocol on Gender and Development of 2008.Treaty and Declaration of SADC of 1992.United Nations Protocol relating to the Status of Refugees of 31 January 1967.United Nations Convention on the Rights of the Child (CRC) of 1989.United Nations Convention relating to the Status of Refugees of 1951.United Nations Protocol Relating to the Status of Refugees of 1967.United Nations International Covenant for Economic, Social and Cultural Rights of 1966.

National LegislationLesothoAliens Control Act of 1966.Constitution of Lesotho.Labour Code (Amendment) Act of 1997. Labour Code Order of 1992.Workmen’s Compensation Act of 1977.

MalawiConstitution of 2004.Refugees Act of 1989.

MauritiusDeportation Act of 1968.Immigration Act RL 3/87 of 17 May 1973.National Pensions (Non-Citizens and Absent Persons) Order of 1978.National Pensions (Non-Contributory Benefits) Regulations of 1977.Social Aid Regulation of 1984.

NamibiaChildren’s Act No. 33 of 1960.Criminal Procedure Act 51 of 1977.Labour Act 11 of 2007.Namibian Refugee (Recognition and Control) Act 2 of 1999.Social Security Act 34 of 1994.

South AfricaCompensation for Occupational Injuries and Diseases Act 130 of 1993.Constitution of the Republic of South Africa, 1996. Immigration Act 13 of 2002. Labour Relations Act 66 of 1995.Medical Schemes Act 131 of 1998.Private Security Industry Regulation Act 56 of 2001.Refugee Regulations (Forms and Procedure) 2000.Refugees Act 130 of 1998. Regulations Relating to the Application for and Payment of Social Assistance and the Requirements or Conditions in Respect of Eligibility for Social Assistance (Published in GG 31356 of 22 August 2008). Social Assistance Act 13 of 2004. unemployment Insurance Act 63 of 2001.unemployment Insurance Contributions Act 4 of 2002.

SwazilandEmployment Act of 1980. Provident Fund Order of 1974.


TanzaniaImmigration Act No. 7 of 1995. Refugees Act No. 9 of 1998.

65ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS iN LESotho

Chapter 2

ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL

BENEfitS iN LESotho

Bitso BITSO

1. MAtriCES oN ACCESS to SoCiAL SECUritY AND (EX)portABiLitY of SoCiAL SECUritY BENEfitS

Lesotho has various forms of social safety nets. However, these are fragmented over a range of government ministries. A smaller proportion of these safety nets is managed by the private sector, mostly through the social insurance form of social security. Access to these safety nets is often means-tested except in the case of old age pension where the benefit is accessed on a universal basis. The three matrices below provide a brief overview of the different forms of social intervention that Lesotho offers to its citizens and other vulnerable groups.

Matrix A: Access to social services/social security

Category of persons covered

Social assistance

Old age pension (public,

occupational, private)

Disability pension (public,


Unemployment (public,


Citizens Access by all vulnerable groups subject to qualifying conditions.

Old age pension benefit is available on a universal basis to all who meet the qualifying conditions. However, limited in occupational and private sectors.

Access by all working class in public or private sector.

Applicable minimally in private sector.

Permanent residents

Available legislation is silent.

Not applicable unless privately arranged.

Access available for injury on duty. Private arrangements are also available.

N/A to public, minimal in occupational and private sector.



Social assistance







Temporary residents (including contract migrants)

Not applicable. Private arrangements to a limited extent.

Occupational access for injuries on duty is available; private arrangements are also available for non-occupational disability.

Not applicable for public, minimal in occupational and private sectors.

Refugees

Have access to the benefit.

Only indigent refugees have access.

Occupational access for injuries on duty is available; private arrangements are also available for non-occupational disabilities.

Available by individual’s own private arrangement.

Asylum seekers Have access to the benefit.

Only the indigent asylum seekers have access.

Occupational for injuries on duty, private arrangements are also available.

Available by individual’s own private arrangement.

Undocumented non-citizens

No entitled. Not entitled. Not entitled. Not entitled.

Matrix B: Access to social services/social security

Category of persons

covered

Health care (public,


Sickness benefits (public,


Public housing Schooling (public, private)

Citizens Subsidised access on public, free for occupational and private arrangements available.

Access is available to all categories.

Applicable minimally to vulnerable groups.

Access to free primary education in public and church schools.

Permanent residents

Access to highly subsidised healthcare services in public hospitals and clinics, free occupational and private access.

Have access to subsidised sickness benefit in public facilities. Free access for occupational and private arrangements.

Minimal provision to the indigent.

Have access to free primary education.


Category of persons

covered







Access to subsidised public healthcare services Benefits free for occupational and private arrangements.

Benefit available for public and occupational arrangements.

No access. Have access to free primary education in public and church schools.

Refugees

Indigent refugees have free access to subsidised public healthcare services.

Access available for injuries on duty, maternity and highly subsidised health services.

Have free access to public housing benefit.

Have access to free primary education in public and church schools.

Asylum seekers Indigent refugees have free access to subsidised public healthcare services.

Access available for injuries on duty, maternity benefit and highly subsidised health care services.

Have free access to public housing benefit.

Have access to free primary education in public and church schools.


Have access to public healthcare services and private arrangements but no access for occupational arrangements.

Access limited to occupation alone, i.e. for occupational injuries and maternity leave benefit.

No access to public housing.

No access to education.

2. BACKGroUND

Lesotho is situated at 28ºS and 30ºE on the African Continent, is completely surrounded by the Republic of South Africa (RSA) and measures a mere 30 355 square kilometres. Its topology and geographic location make its economic development and experiences somewhat different from other developing countries. The population is estimated to be 1 880 661.1 In many developing countries agriculture is the primary sector and the main economic contributor. However, in Lesotho this is not the case. The economic contribution of the primary sector is relatively small.

1 Preliminary Population Census results, 2006.


The tertiary sector such as the textile manufacturing sector and the Lesotho Highlands Water Project (LHWP) contributes a higher percentage. Farming employs 72.8% males and 63.2% females while the private sector employs 18.9% males and 24.9% females and the government 8.3% males and 12% females.2 A labour force survey was conducted in 2008 but the results have not yet been published. However, according to the 1999 Labour Force Survey it was estimated that there are 80 125 people employed by the private sector. The Survey further divides the labour force into 76 495 locals and 3 630 expatriates. The Survey also estimates the unemployment rate to be 31.1% excluding the migrant workers. When the migrant workers are included the unemployment rate reduces to 27.3%. These results are indicative of poor economic performance which has resulted not only in high levels of poverty but also in increasing destitution that has undermined the country’s social protection provisioning efforts.

In recent years, overall economic performance has been erratic with some years experiencing exceptionally low growth rates while others realised impressive rates. Performance was exceptional during the period 1993–1996 when the economy grew by an average of 9.7% per annum, mostly as a result of investments in construction (especially through the Lesotho Highlands Water Project). However, in 1997 growth rates decelerated significantly when only a 3.5% increase in real GDP was realised. The situation deteriorated further in 1998 when the country experienced political upheavals and real GDP declined by 8.6%. This was due to the winding up of the LHWP phase 1A and 1998 political turmoil, which resulted in destruction of major businesses. This was coupled with major retrenchments in RSA mining industry, which until the mid-1990s (when major retrenchments occurred) employed around 40% of the Basotho male labour force. The high rate of retrenchment has meant that the remittances which to a large extent were the mainstay of rural economic activity have declined, further plunging not only the rural economy, but also the economy and wellbeing of the whole nation into exigency.

The volatile economic performance has had significant negative impacts on the country, not only in terms of economic stability but also for the overall social security and wellbeing of the Basotho nation. The poverty reduction strategy was developed in 2005 with the ownership of Basotho, as everybody was involved in its preparation.3 The Vision 2020 is also another document which aims to see Lesotho as a stable democracy, united, prosperous nation at peace with itself and its neighbours. It will have a healthy and well-developed human resource base. Its economy will be strong, its environment well-managed and its technology well-established.4

2 Labour Force Survey, 1999.

3 Government of Lesotho Poverty Reduction Strategy Paper, 2004.

4 Government of Lesotho, Vision 2020.


3. forMS of SoCiAL SECUritY

3.1 introduction

As mentioned earlier, the Kingdom of Lesotho faces multiple social crises caused by nexus social challenges that have plunged the country into deep-rooted poverty, chronic food insecurity, HIV/AIDS and other chronic illnesses, all of which have undermined past socioeconomic and human development gains. Lesotho is counted among the countries with high prevalence of HIV/AIDS.5

According to the website of the National Aids Commission the adult HIV/AIDS prevalence rate is 23.2%.6 As a result of these social shocks, the government of Lesotho has put in place a number of social safety nets which are scattered throughout a number of government Ministries with a negligible number of a working population covered under the private by the private sector. The government is the main financier of social security benefits. The text below provides a near exhaustive outline of these benefits, how they can be accessed and who can access them.

3.2 old age pension

The government of Lesotho provides old age pension to its citizens who are 70 years and older.7 This benefit is paid on a universal basis to citizens who meet the qualifying criteria. The Old Age Act of 2005 stipulates that pension will be paid at the rate determined by the Minister responsible for finance from time to time. Since April 2009, the monthly pension is M300 after having been increased from M200 in 2007 and from M150 in 2004. According to the old age pension payroll for the month of March 2008 there are 77709 pensioners.

In principle, a pension is payable to the member, that is the senior citizen, who must present himself or herself in person at a designated pay point. However, where the pensioner is unable to collect the pension due to ill health, he or she is allowed to appoint a caretaker to collect the pension on his/her behalf.8 There are various pay points established throughout the country where pensioners receive their monthly allowances. Most of these pay points are at the Post Bank’s offices.9

5 Government of Lesotho/Expanded Theme Group on HIV/AIDS “Turning a Crisis into an Opportunity: Strategies for Scaling Up the National Response to the HIV/AIDS Pandemic in Lesotho” Lesotho, 2004.

6 National HIV and AIDS Policy, 2006.

7 Old Age Pension Act of 2005.

8 Old Age Pensions Regulations, 2007.

9 Interview with Mr Thabo Thulo, Commissioner of Pensions at the Ministry of Finance and Development Planning (12 September 2008).


The old age pension was first introduced by the government of Lesotho in 2004. The following year the Old Age Pension Act of 2005 was enacted by Parliament. In 2007, the Minister responsible for Finance and Development Planning made the Old Age Pensions Regulations, 2007, in order to elaborate further on the provisions of the main law, the Old Age Pension Act of 2005.

3.3 African Pioneer Corps (Pensions) Act 2000

Apart from the old age pension, there is also an African Corps Pioneer Pension (for war veterans) and a widows’ pension. By definition, war veterans are male citizens of Lesotho (soldiers) who took part in the first and second World Wars. Since all these people are over 70 years, they receive an old age pension of M300 as well as the war veterans’ pensions of M150, bringing their total pension to M450. Widows of the deceased war veterans also receive M450 provided they are 70 years or older. However, if they are below 70 years of age they only get the M150 war veteran’s pension. As of March 2008 there were only 4 545 war veterans and widows10. The pension ceases to be paid upon death of a beneficiary or if the widow remarries.11

3.4 public servants pension

Civil servants may opt for an early retirement at the age of 55 years or compulsory retirement at the age of 60 years. Retirement can also be taken on medical grounds. Public officers qualify for a pension from public funds if they have served the government for at least 10 years prior to retirement. Moreover, they must have been hired on permanent and pensionable terms. Temporary daily-paid employees do not qualify for pension. People engaged under these terms are generally the unskilled.

Since 1994, teachers are also entitled to pension upon retirement at the ages of 55 and 65 for early and compulsory retirements, respectively. However, the Pensions Proclamation of 1964 (The Proclamation) covers only teachers in public schools and not in private schools.12

3.5 Defined contribution pension scheme for public officers

The government of Lesotho has decided to introduce a defined contributions pension scheme for all public officers. This is a compulsory contributory scheme and, on commencement, public servants who are 45 years and under become members.13 According to the Public Officers Defined Contribution Pension Fund Act of 2008, the scheme

10 Pensioners Payment schedule for March 2008.

11 African Pioneer Corps (Pensions) Act 15 of 2000.

12 Pensions Proclamation 4 of 1964 (The Proclamation).

13 Public Officers Defined Contribution Pension Fund Act 8 of 2008.


became effective in April 2008. However, an interview with Mr T. Thulo revealed that the first contributions were only made in November 2008.14 The total contribution rate is 16.2% divided between the government and employers at 11.2% and 5% respectively. 5% from the government’s contribution goes towards the pension cover while the remaining 6.2% covers other related costs such as administrative costs and insurance against other risks covered by the law.

3.6 Compensation for occupational injuries and diseases

Public servants who are injured due to and in the course of employment are entitled to compensation under the Public Service Regulations of 1969 and the Pensions Proclamation of 1964. Compensation claims under the latter law are payable on retire-ment and disregard inflation, while claims filed under the regulations of 1969 in contrast are payable upon establishment of a permanent disability.15 The assessments are done by the Medical Board. The salary at the time of accident and the extent of disability are important components in determining the compensation payable.16

Every other worker in Lesotho who becomes the victim of an occupational injury or contracts an occupational disease is covered by the Workmen’s Compensation Act of 1977. This Act however excludes His Majesty’s Armed Forces, the Lesotho Mounted Police Service and the Prisons Services. These categories are covered by the Pensions Proclamation of 1964 mentioned above. According to the Workmen’s Compensation Act of 1977, workers who are injured due to, and in the course of, their employment are entitled to compensation from their employers.17 This is a no-fault based system.18 In order for the employer to meet this statutory obligation of compensating the injured worker, the law requires that the employer takes an insurance cover with a private carrier approved by the Minister of Labour.

Compensation is not paid directly to the injured worker by the employer or insurance company, but through the office of the Labour Commissioner who also assesses how much compensation is due.19 The Labour Commissioner is able to do this upon receiving an accident report with the assessment of the injury by a medical practitioner who must be operating in Lesotho legally. In the event that the injured worker dies before receiving compensation, such is payable to the dependants of the deceased as may be certified by the District Administrator, Principal Chief or the courts of law in certain instances. There

14 Inverview with Mr T. Thulo, Principal Officer of the Public Officers Defined Contribution Pension Scheme (10 July 2009).

15 S 1201 of the Public Service Regulations 16 of 1969 and Pensions Proclamation 4 of 1964.

16 ibid.

17 Workmen’s Compensation Act 13 of 1977.

18 Shannon, H.S. & Lowe, G.S. “How Many Injured Workers Do Not File Claims for Workers Compensation Benefits?” 2002 American Journal of Industrial Medicine 42: 467-473.

19 Workmen’s Compensation Act 13 of 1977.


are no restrictions on who should get compensation. Everyone who satisfies a definition of a “Workman”, other than categories of people stated above, is eligible for compensation as long as they are injured on duty or have contracted occupational diseases. Thus the Workmen’s Compensation Act does not discriminate based on whether a worker is a citizen or not.

3.7 Maternity and family protection

Lesotho does not have a public social insurance scheme which pays maternity leave benefits. However, in terms of Section 133 of the Labour Code Order of 1992, an employer is obliged to release an expectant female worker for a total of 12 weeks: six weeks before and six weeks after confinement.20 This period may be extended upon presentation of a certificate by a medical doctor or midwife indicating that the employee suffers from an illness arising from confinement.21 Female employees are entitled to full wages for up to 60 days.22

Section 134 of the Labour Code Order of 1992 does not impose any obligation on an employer to pay wages to a female employer during her absence from work owing to confinement.23 However, most employers, especially in leading industries like the financial institutions, have been paying maternity leave in full. This is despite the fact that the principal labour legislation has left the discretion for payment with the employer.24 In 2006, the Labour Code Wages (Amendment) Order was amended to incorporate payment of two weeks maternity leave for female employees who worked in textile, clothing and leather manufacturing and have served continuously for a period longer than one year.25

Female employees working in any other industry are entitled to six weeks paid maternity leave after having worked with the same employer for a continuous period of more than one year. In both situations, the benefit is limited to two confinements per employee.26 Paternity leave is not provided for by the law nor is it practiced in Lesotho. Although some people would argue that it is necessary, the big question is whether men will be disciplined enough to sit at home and assist partners with nursing needs.

In terms of Section 137(1), female employees are entitled to one hour per day to nurse their child, upon their return to work following maternity leave.27 The free hour is

20 Labour Code Order 24 of 1992.

21 ibid.

22 ibid.

23 ibid.

24 Discussion with Mrs M. Matsoso, Labour Commissioner at the Ministry of Labour and Employment (16 September 2008).

25 Labour Code Wages (Amendment) Order 169 of 2007.

26 ibid.

27 ibid.


provided over and above the lunch hour and the employer is not allowed to deduct wages for time taken off work for this purpose. This entitlement lasts for six months from the first day a nursing mother reports for work. Nevertheless, the employer and the worker should agree on a convenient time suitable for both.

Workers on maternity leave are protected from dismissals in terms of Section 136(1) of the Labour Code; any dismissal of an employee that takes effect during her statutory maternity leave is tantamount to unfair dismissal.28 In the Public Sector, Section 81 of the Public Service Regulations, 2008, points out that the period of maternity will be determined by the Minister responsible for public service in consultation with an association recognised by the Minister. Consultative discussions with the Human Resources Manager of the Ministry of Labour and Employment revealed that in practice, expectant public officers are given two months paid maternity leave.29

Maternity and dismissal protection extends to every employee irrespective of whether they are citizens or not.

3.8 Severance payment

In the event that an employee ceases to be employed for any reason other than misconduct, such an employee will be entitled to two weeks’ salary for each completed year of service.30

Severance pay does not only cover employees who are citizens, but extends to all other employees irrespective of their residence status (i.e. citizens, permanent or temporary residents, etc.).

3.9 Ante- and post-natal care

Ante- and post-natal facilities are not provided for. However, in some cases employers in the domestic sector allow nursing mothers to bring their children with them to work. In the public sector, there is neither medical aid nor any form of special medical care or health insurance coverage for expectant and nursing mothers.

A special clinic (Senkatana Clinic) has been established to serve HIV-positive citizens where infected nursing mothers may access available facilities. Nursing mothers also access pre- and post-natal health care from government clinics at highly subsidised prices. Babies are also afforded free vaccination from birth to two and a half years. The former president of the United States of America, Bill Clinton, through the Clinton Foundation has financed the establishment of a clinic meant to exclusively take care of HIV-positive children.


29 Interview with Mrs Mokhethea, Human Resources Manager at the Ministry of Labour and Employment (14 July 2009).



3.10 protection of the indigent

The Department of Social Welfare in the Ministry of Health and Social Welfare, among other things, provides counselling to people who experience various shocks. The benefit extends to all children that have no parents or relatives to look after them and other people who are regarded as poorest of the poor. Those who pass the means-test are paid a monthly stipend of M100. Tied to this is a medical exemption voucher which the recipient may utilise at the public health service.

Due to the high demand for services of the Department, which unfortunately does not match the available resources, the Department does not go out to search for people to assist; rather the people themselves come forward in large numbers to look for assistance. People who come forward are assessed using certain predetermined criteria which seek to establish if indeed they lack the means. Those who pass the test qualify for a stipend. The benefit is only restricted to citizens and does not cover other categories of people.

The benefit provided under this policy is not limited to cash transfer. Beneficiaries are also given special cards and booklets in order to allow them to access health services at public hospitals and clinics. Moreover, they receive the following benefits:

Distribution of food parcels: a formula given to children born from these groups of ��vulnerable people.31

Those with problems of eyesight are given spectacles to boost their sight.��

Clothes donated to Department of Social Welfare are also distributed to these people ��and upon death beneficiaries are bought a coffin so that they may be buried with decency.

Although this service is still centralised, the stipends and food parcels are delivered at the areas where these people reside. The World Food Programme is also highly instrumental in complementing the efforts of the government by providing food to the needy.

A recipient of this form of assistance, who reaches 70 years, ceases to be entitled as he/she would automatically qualify for the old age pension. Although there is a guiding policy, there is no particular law that governs this sort of intervention.32 It would appear that recipients are aware that this is not a right but a privilege. This means that it can be stopped at any time. Though the policy is silent on permanent residents and temporary residents, no one from these groups has so far attempted to access the benefit.

3.11 orphans and Vulnerable Children (oVCs)

An orphan is any person below the age of 18 who has lost one or both parents due to death.33 A vulnerable child, on the other hand, is any person below the age of 18 who has

31 Brochure prepared by the Department of Social Welfare.

32 National Social Welfare Policy of 2004.

33 National Policy on Orphans and Vulnerable Children of April 2005.


one or both parents who have deserted or neglected him/her to the extent that he/she has no means of survival and as such is exposed to dangers of abuse, exploitation and/or criminalisation and is, therefore, in need of care and protection.34

Orphans and vulnerable children are also entitled to a stipend of M100 plus cover against their academic requirements. That is, post-primary fees are paid by the government through the Manpower Development Secretariat bursaries while those at primary schools are covered under the free primary education. Their uniforms and other utilities necessary for their schooling are paid for by the government.35 This arrangement only applies for primary and high school levels of education and the assistance is limited to pupils in public schools and church schools and not private schools.36 At university level, they are eligible like everybody else to apply for the Loan Bursary from the Manpower Development Secretariat. The loan is repayable upon completion of the studies. The demand for the facility is reported to be high and as a result not all applicants are funded.

3.12 rehabilitation of people with disabilities

The government has established a centre called Ithuseng Vocational Rehabilitation Centre. The objective of the centre is to provide vocational training to people with disabilities in order to enhance their chances of being (re)integrated into the labour market.37 Assistive devices are also provided to those in need of them at no cost.

3.13 Visually impaired people

The Lesotho National League of Visually Impaired Persons (LNLVIP) was established in 1986 to support the educational needs of visually impaired persons. Through the assistance of the Norwegian Association of the Blind and Partially Impaired, a centre was established outside Maseru City to provide an enabling environment for studies to take place. The centre is called “Mohloli oa Bophelo” Rehabilitation and Training Centre, hereafter referred to as the Centre. Literally translated, Mohloli oa Bophelo means the Source of Life. The centre facilitates Braille education of the visually impaired children through St. Bernadette Primary School which, apart from normal teaching of pupils, also teaches Braille.38 Acquired knowledge of Braille increases these children’s chances of being employed.

34 ibid.

35 ibid.

36 Discussion with Ms Retselisitsoe, Principal Social Worker at the Ministry of Health and Social Welfare, Department of Social Welfare (18 September 2008).

37 Discussion with Cecilia Rahlao, Administrator of the Lesotho National League of Visually Impaired Persons (LNLVIP) (18 September 2008).

38 ibid.


The Centre also offers rehabilitation training to its members in areas of production of candles, sewing and knitting, orientation and mobility as well as counselling.39 For one to become a member, one has to be partially or totally blind and pay a membership fee of M10 per annum.40 The money is used exclusively for upkeep of the Centre. The salaries of staff of the centre and other operating expenses are paid directly by the Norwegian Association of the Blind and Partially Impaired. There are currently 40 people who live at the centre, although the overall membership is around 2 000.41 It would appear that the support Norway has been providing is coming to an end in 2009. An agreement has been signed with the government of Lesotho to continue the good work Norway has started.

Although there is no policy to direct the operations of the Centre, its operations are said to be in the pipeline. The operations of the Centre are, however, currently guided by the Constitution which was adopted in 1986 and amended in 2004. According to the Constitution, only citizens of Lesotho are eligible to become members of the Centre.42 It follows therefore that visually impaired non-citizens do not have access to the services of the Centre but can study Braille in public and church schools that offer such training, like St. Bernadette Primary School.

3.14 Sickness benefits

Sickness benefits in Lesotho are very limited. Employees who work in Lesotho enjoy paid sick leave benefit provided they produce a medical certificate absenting them from work. Section 123 of the Labour Code provides that an employee is entitled to sick leave on full pay subject to production of a certificate of incapacity signed by a registered medical practitioner.43 This benefit is calculated in the following manner:

During the first six months of employment, any absence due to illness may be unpaid.��

After six months, an employee is entitled, as a minimum, to sick leave on full pay for ��up to 12 days.After 12 months, an employee is entitled to sick leave on full pay for up to 12 days, ��and thereafter to sick leave on half pay for up to 24 days in each period of 12 months continuous employment.

Entitlement to the above benefits is subject to the incapacity not having been self-inflicted by an employee.

39 ibid.

40 ibid.

41 Discussion with Cecilia Rahlao, Administrator of the Lesotho National League of Visually Impaired Persons (LNLVIP) (18 September 2008).

42 Constitution of the Lesotho National League of Visually Impaired Persons (1986) as amended in 2004.



3.15 Education

The Constitution of Lesotho has provisions on social and economic rights, amongst which the right to education is included.44 It should be mentioned, however, that the right is not justiciable. Government has had an important role to play in ensuring access to education for the majority of its citizens. In Lesotho, Free Primary Education (FPE) was introduced and implemented in January 2000 following its announcement in 1995 as entailed in the Education Act, 1995. Therefore, like in other countries where this programme exists, the main goal of this endeavour is to provide basic education to all children living in Lesotho. In doing so, the government of Lesotho guarantees parents access to primary education without fees.

The FPE programme in Lesotho was strategically implemented in phases so as to make it financially affordable and sustainable. It started with Standard 1 in the year 2000, Standard 2 in 2001 and by 2006 the whole primary cycle was covered. According to the Ministry of Education and Training (MOET) Statistical Bulletin of 2005, there were 118 843 pupils enrolled in Standard 1.45 This number increased considerably, since 2000 as there were 424 855 pupils enrolled in Lesotho Primary Schools.46 Orphans and Vulnerable Children (OVCs) constituted 128 257 of the pupils. In implementing FPE, the government has committed itself to assisting with teachers’ salaries, provision of classrooms and equipment as well as meals. Consequently, the Ministry’s budget has been increasing substantially in recent years. For instance, the ministerial budget for the Fiscal Years 2005/2006 and 2006/2007 was M967.5 million and M1.134 billion respectively.47 This is despite the fact that some International donors such as Irish Aid have assisted the government financially in making the programme a success especially in the area of civil works.

The free primary education is accessible to all citizens, destitute permanent residents and children of employed temporary residents as well as refugees and asylum seekers. That is, it is open to anybody including foreigners as long as their stay in Lesotho is legal. In the above categories those who can afford to have the option to take their children to the private schools of their choice at their own expense.

3.16 health care

Access to health care is not freely given to the citizens. The government subsidises the cost towards the healthcare services provided to its citizens.48 Citizens and permanent residents

44 S 41 of the Constitution of Lesotho.

45 See Ministry of Education Statistical Bulletin of 2005.

46 ibid.

47 Ministry of Education and Training (MOET) Annual Budget 2005/2006 and 2006/2007.

48 This is according to Mrs Makhakhe, Director of Health Planning & Statistics at the Ministry of Health and Social Welfare, in an interview held on 21 August 2008.


are eligible to access this benefit. There has not been any attempt by undocumented non-citizens to access this benefit for obvious reasons such as fear of being caught, prosecuted and deported. Rather they opt to seek treatment from the private medical practitioners.

The subsidy is, however, selective as it is only available in government hospitals, clinics and other health services. Therefore, patients who choose to get private healthcare services bear their own medical expenses without the government financial subsidy. Those who wish to obtain healthcare services from the private healthcare centres will sometime make use of medical aid services.

Health care for occupational purposes is statutorily governed. Employees both in the private and public sectors are entitled to some compensation should they become victims of occupational diseases and injuries.49 In cases where the employee has to be provided with medical care, the employer pays the medical expenses over and above the compensation that the employee is entitled to.50

A person acquires permanent residence status if such a person has lived in Lesotho for a period of at least five years. After this period, such a person enjoys the same treatment as a citizen in healthcare matters. Thus, a permanent resident attending a government hospital is entitled to a government subsidy towards medical expenses. In a similar way, all employees, irrespective of whether they are citizens, permanent residents or temporary residents, must be insured by the employers against any injury or disease that may arise out of and in the course of employment. In this case the employer has an obligation to take the employee to a medical healthcare centre and pay for the medical bills.

3.17 public housing

The Republic of South Africa provides shelter to its citizens who cannot afford to build own houses. This it achieves on progressive basis and within the available budgetary allocations.51 Conversely, Lesotho does not provide shelter to its citizens.

According to Mrs Matlatsa, Lesotho does not have public housing as a form of social assistance.52 This is the case whether the person is a citizen or temporary resident. Refugees and asylum seekers are exceptions as they have access to free housing.53 It however merits mention that there is access to housing for citizens who are interested in buying real estate.54 The housing is therefore affordable to the working-class people who

49 See Workmen’s Compensation Act 13 of 1977 and Public Service Regulations 78 of 2008.

50 ibid.

51 S 26 of the Constitution of the Republic of South Africa.

52 The Marketing Manager of the Lesotho Housing Cooperation and Development. This was revealed in an interview conducted on 10 September 2008.

53 Interview with Mrs Hape, Information Officer at the Ministry of Home Affairs, Public Safety and of Parliamentary Affairs (15 September 2008).

54 ibid.


are able to negotiate loans with the banks in order to buy real estate. It merits mention though that, through the assistance of donor agencies, there is a provision of low-income housing for people whose monthly income ranges between M700 and M2 500.55 The occupants of these houses pay a monthly installment for a period between seven and ten years. The amount of the installment is calculated based on the price of a bag of cement. The other requirement necessary for entitlement of this form of housing is proof of citizenship. Usually a passport or a marriage certificate suffices as proof thereof.56 Housing is also afforded to public servants who are permanent and pensionable and hold a grade G and above rank according to government salary structure.57

It stands to mention again that notwithstanding the fact that there is no provision of public housing in Lesotho, a policy initiative has been taken in this regard. There is a draft National Shelter Policy. This policy is founded on the need to manage the shelter sector, to stimulate expression of demand and to enable a responsive supply system. According to Ms Nthona, the National Shelter Policy is seen as a way of building a basis on which to effectively develop housing solutions and alleviate housing problems for the Basotho nation.58 The Draft Policy itself states that the goal of this policy is to provide guidelines for government at all levels to promote, protect and ensure full and progressive realisation of the right to adequate shelter for all, both in rural and urban communities.59 The parameters within which the goal is to be achieved are accessibility, affordability and equity.

3.18 Pensions Scheme (Corporate Bodies) Act of 1979

This Act provides for the establishment of a contributory pension fund for employees of corporate bodies (private sector). It covers permanent and temporary employees.60 The following benefits are provided under the Act: old age pension, widow’s pension, death benefit/gratuity and retirement on grounds of ill health.

The scheme is accessible to all employees in the private sector. Membership in the scheme however depends on the choice of the employer who should contribute a certain percentage while the employee also contributes. The scheme makes no distinction whether an employee is a citizen, permanent resident or otherwise. All receive equal treatment as long as they are members. The following categories of employees are not covered:

55 This was revealed in an interview with Mrs Lehlaha, Community Officer of Habitat for Community (11 September 2008).

56 ibid.

57 Interview with Ms L. Ntsane of the Ministry of Public Service (15 September 2008).

58 Interview with the Housing Officer of the Ministry of Local Government and Chieftainship Affairs (11 September 2008).

59 Draft National Shelter Policy of 2009.

60 Corporate Bodies Pension Scheme Act of 1979.


An employee who has not reached the age of 17.��

A male employee who has attained the age of 50. A female employee who has attained ��the age of 45.

The shortcoming that has been identified with the pension scheme is its inadequacy in terms of its coverage regarding the number of people, contingencies and benefits structure.

3.19 Social assistance for indigent refugees

Refugees are people who reside outside their countries for fear of persecution on the basis of their religion, nationality, political opinion or affiliation to a certain social group and are thus unwilling to return home.61 Lesotho is among the 146 state parties that have ratified the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees.62 All Southern African Development Community (SADC) states have adopted these practices.63

The influx of refugees to Lesotho began in 1986. Most of these refugees came from DRC and Sudan.64 Refugees in Lesotho are protected by the Refugees Act of 1983 and the Refugees Regulations of 1986. The regulations came into being to introduce a stipend for the destitute and hence vulnerable refugees. It would appear that, at the moment, half of the refugees fall into this category.

3.20 Unemployment insurance

Unemployment insurance cover pays benefits where employees are temporarily laid off of work, are ill or on maternity leave. Dependants are also entitled to benefits in the event that the contributor passes on.65 Unfortunately, Lesotho does not have Unemployment Insurance for workers when they are temporarily laid off. This is the case both in private and public sectors.

3.21 Conclusion

Lesotho is often quoted as an example to demonstrate that even the least developed countries can afford some form of social security.66 Particular attention in this regard is

61 uNHCR Helping refugees: Introduction to united Nations High Commissioner for Refugees 2005, 6.

62 ibid. 17.

63 In an interview with Mr Sefali, Commissioner of Refugees at the Ministry of Home Affairs and Public Safety (10 September 2008) revealed that this adoption was made on 1 September 2005.

64 Refugees Act 18 of 1983 and Refugees Regulations of 1986.

65 Olivier, M.P., Smit, N. and Kalula, E.R. (eds.) Social Security: A Legal Analysis (LexisNexis Butterworths 2003.)

66 REBA case study brief No. 3, 2007


frequently paid to the universal Old Age Pension which the country affords its citizens. There are a number of other forms of interventions that have been articulated above in this document. All these are however not without criticism particularly with regard to inadequacy of benefits, both in terms of the benefit itself and the coverage. If we take for instance, the old age pension, some people argue that the qualifying age of 70 years is too high and efforts must be concerted to reduce it. The monthly benefit of M30067 (having been increased from M200) is still considered by many to be relatively low, particularly during this time of global economic downturn.

4. ACCESS to forMS of SoCiAL SECUritY

4.1 introduction

In the previous section we determined the various forms of social security that are available in Lesotho and their accessibility to different groups of people. In this section we now take a closer look at the application of these forms of social security to different categories of people, namely permanent and temporary residents, undocumented non-citizens and refugees and asylum seekers.

4.2 permanent and temporary residents

Although a number of available pieces of legislation are silent on social security access by these categories of people, access social security benefits has never been pursued or challenged by permanent nor temporary residents.68 The reasons for not accessing these rights are not known.

4.3 Undocumented non-citizens

Lesotho, unlike South Africa, does not have a serious problem with illegal immigrants that are in need of social protection. The majority of foreigners who come to Lesotho illegally often have to support themselves without any form of assistance from the government. However, the problem of undocumented non-citizens is minimal in Lesotho. There is also a small portion of people who enter Lesotho legally but obtain employment illegally in the country. For instance, during the year 2007, in Maseru alone,69 the report of labour inspectors shows that about 45 people, all Chinese in retail and supermarket business, were found to be working without work permits.70 In Letšeng Diamond Mine which is

67 Lesotho Government National Budget Speech, 2009.

68 Discussion with M. Ramathe, Director of Immigration at the Ministry of Home Affairs, and T. Thulo, Commissioner of Pensions at the Ministry of Finance (10 September 2008).

69 Maseru is the capital of Lesotho.

70 Labour Inspection Report for the period January to December 2007.


situated in the district of Mokhotlong, there were 10 South African citizens who were found to be working with different sub-contractors without work permits during a labour inspection which took place on the 18–22 August 2008.71 If they are injured on duty or contract an occupational disease, then they would be entitled to compensation. The labour laws of Lesotho, namely the Labour Code Order of 1992 and the Workmen’s Compensation Act of 1977 do not discriminate between workers who are citizens, and those who are non-citizens. The laws only make reference to “Workers” or “Employees”.72

4.4 Refugee social security benefit

Most refugees in Lesotho are employed and as a result able to support themselves and their dependents. There are however, some refugees who have no means of income and as result the government of Lesotho has put in place a social assistance benefit package for the indigent refugees in the form of:

Free health services obtainable from the public health centres and public hospitals.��

Access to free primary education and a free secondary education from the public and ��church schools but not private schools.A monthly stipend amounting to M400.�� 73

Refugees who have lived in Lesotho for at least five years are eligible to apply for full citizenship of the country.74 They must, however, renounce their citizenship of their country of origin in order for their application to be considered. Dual citizenship is not permissible in Lesotho.75 They are given special identity cards in order to enable them to access the benefits identified above.

4.5 Asylum seekers

In Lesotho, asylum seekers are regularised to become refugees within a week due to the small numbers in which they are received.76 According to Mrs Hape of the Information Office of the Ministry of Home Affairs, asylum seekers are provided with temporary shelter while they are waiting to be regularised.

71 Discussion with Ms M. Molapo, acting Inspection Manager (09 September 2008).

72 Labour Code Order 24 of 1992 and Workmen’s Compensation Act 13 of 1977.

73 Exchange rate: 1:1 to the South African Rand.

74 Aliens Control Act of 1966.

75 S 41 of the Constitution of Lesotho.

76 Interview with Mr Sefali, Commissioner of Refugees at the Ministry of Home Affairs and Public Safety (10 September 2008).


4.6 Conclusion

It would appear that access to a number of social security benefits is somehow limited to the citizens of Lesotho. In other instances the law is silent on whether other categories of people are entitled or not. It is therefore recommended that the disadvantaged categories should come forward and demand access to these benefits and where they are refused, approach the courts of law for intervention. This will not only assist them obtain clarity on these matters but could also influence changes to conservative policies. It is important though to note that refugees are well taken care of in Lesotho, in some cases their benefits exceed even those of the citizens. However, a question still remains whether this is not attributable to their insignificant number.

5. (EX)portABiLitY of BENEfitS

5.1 introduction

We have already discussed the scope of accessibility of various forms of social security to different categories of people. In this section we shall talk about portability and exportability of social security benefits where we explore various social security benefits which accrue to the citizens of Lesotho in foreign countries, particularly the Republic of South Africa, and how these are exported to Lesotho. In 1973, the Republic of South Africa (RSA) and the Kingdom of Lesotho entered into an agreement relating to the establishment of an office for a Lesotho government labour representative in RSA, Lesotho citizens in RSA and the movement of such persons.

Apart from making it possible for Lesotho official to liaise with the South African authorities, on matters relating to Workmen’s Compensation and pneumoconiosis, Article IV of the agreement also states that there shall be deducted from the wages of a Lesotho citizen employed in RSA:

Deferred pay to be paid to such citizens in Lesotho upon return to Lesotho.��

Allowances to be paid to the worker’s family residing in Lesotho.��

The agreement further states that the employer is responsible for making such deductions as per the contract and shall pay the amounts deducted to the Lesotho authorities at such intervals as the Lesotho government may request but not exceeding three months.

Later, in 1985 and as result of the 1973 Labour Agreement, the government of Lesotho established a fund (Workmen’s Compensation Trust Fund) in order to facilitate a smooth transfer and payment of benefits of Lesotho citizens to Lesotho from RSA.77

77 Workmen’s Compensation Trust Fund Regulations 42 of 1985.


In 2007, the two governments of RSA and Lesotho signed yet another agreement,78 the objective of which is to facilitate the movement of persons across the borders between these countries. The agreement was made within the purview of the 1973 agreement discussed above.

5.2 Deferred pay

All Basotho who work in South African mines are required by law to remit a certain percentage of their salary to Lesotho for later use by such migrants.79 Currently, the rate is 30%. These remittances are paid through the recruiting agencies in Lesotho.80 The Employment Bureau of Africa (TEBA) is the main and probably the only recruiting agency in Lesotho. As of March 2008, there were 52 735 Lesotho migrants working in South African mines and their remittances for the quarter ending March 2008 totalled M68 925 000.81 The Deferred Pay Act of 1979 has been repealed and replaced by the Deferred Pay Act of 2009. The former was administered under a pool account, where money was received in a pool and paid out of it. The fund became insolvent due to poor management; the latter was subsequently introduced. In this method, every miner still remits 30% of the salary but the money is deposited into an interest-bearing bank account of the miners’ choice. The account should however be maintained with any one of the local commercial banks that are registered and operate in Lesotho. Miners are eligible to obtain various forms of loans from the banks with whom they have made the deferred pay savings.82 These people are by law prohibited from making cash withdrawals in South Africa. However, control over this still remains a challenge.

5.3 pensions (compensation related)

Therefore, each month, various pension administrators in RSA make payments to Lesotho. These payments are due and payable to Lesotho citizens under the following circumstances:

Lesotho citizens who were injured or contracted an occupational disease in the course ��of their employment and are entitled to compensation (RSA Compensation Fund and Rand Mutual Assurance).

78 Agreement between the government of RSA and the government of the Kingdom of Lesotho on the facilitation of cross border movement of citizens of RSA and Lesotho, signed in Cape Town, 19 June 2007.

79 Labour Agreement of 1973 between Lesotho and the Republic of South Africa.

80 Deferred Pay Act 19 of 2008.

81 Kingdom of Lesotho Central Bank of Lesotho Quarterly Review Vol. XXIX, No. 1. Maseru, March 2008.

82 Discussion with Mr T. Lebitsa, Migrant Liaison Officer of the Department of Labour, Lesotho (11 September 2008).


Lesotho citizens who worked in a metal-related industry in RSA and are entitled to ��monthly pension owing to retirement.Lesotho citizens who worked in the railway industry in RSA and are entitled to a ��monthly pension owing to retirement.

In recent years there were about 350 pensioners who fell within the three sources of pension. On average their pension remittance for the month of August 2008 was M325 201.83

5.4 Deceased person’s estates

Estates are monies that have accrued to deceased mine workers owing to employment in RSA and are due and payable to their beneficiaries. These monies are paid over to the Lesotho government for onward transmission to the beneficiaries.84

5.5 Corporate bodies pension scheme

According to Mr qamako Mahao of the Lesotho National Insurance Group, benefits offered under the Corporate Bodies Pension Scheme are portable locally and internationally at the initiative of the employee. Such employee will be expected to provide all the necessary information required for the funds to be transferred.

5.6 Conclusion

Apart from the mining sector in the RSA it would appear that arrangements for portability and exportability of benefits are almost non-existent in Lesotho. In areas where the arrangement is in place it is often at the employee’s own initiative. It is therefore important to realise the importance of exportability of benefits both from inside the country and outside and start to make the necessary arrangements. This subject has been under discussion for some time now and it is discussed along with other burning issues such as the aggregation/accumulation of acquired rights and equality of treatment.85

6. CoNCLUSioNS AND rECoMMENDAtioNS

Lesotho has various forms of social security, such as old age pension for senior citizens who are 70 years and older, accommodation, access to health services, access to government-funded primary education and pension stipend for refugees. The Basotho (people of Lesotho) enjoy highly subsidised health services; there is protection of the

83 Monthly payments schedules for August 2008 from Metal Industries Benefit Fund administrators, Office of the Compensation Commissioner and Transnet Pension Fund.

84 Workmen’s Compensation Regulations of 1985.

85 ILO Social Security: A Workers’ Education Guide (ILO 1992).


visually impaired, workers’ compensation for anyone who is injured on duty while employed in Lesotho and other social safety nets provided for under Lesotho labour laws, such as protection from hazardous work environment. It would seem that the laws of Lesotho do not expressly exclude non-citizens from accessing social security benefits but at the same time most of them are silent on whether or not these categories are included.

The available forms of social security seem to be fraught with a number of challenges which include inadequacy of the benefits, both in terms of the benefit structure and the coverage. Moreover, they are fragmented under various government Ministries including the private sector. Consequently, this fragmentation leads to poor service delivery, lack of co-ordination and double dipping in some cases.

It is therefore recommended that where the laws are silent on access to social security benefits, the parties who feel they might be excluded should first of all demand that they be given access. Secondly, if they are unsuccessful they should challenge the exclusion in the courts of law. The judgments of the courts will influence the policy changes and amendments to the law. The case of Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development86 is a classic example where the courts influenced the review of the law.

It is further recommended that there is need for all stakeholders, government Ministries and the private sector to reach a consensus and to join efforts in order to harness and optimise the available intellect necessary to invent a comprehensive non-discriminatory social security scheme that all the people of Lesotho can enjoy. In doing so the concerned parties should bear in mind the socio-economic situation of Lesotho and that the schemes that will succeed are those that have the ownership of the members. There is a need to resuscitate the good old values, beliefs, norms and practices that the Basotho were renowned for. For instance, Basotho strongly believe that unity is strength; this is taken from sayings such as “Kopano ke matla”, “letšoele le beta poho” and “bana ba monna ba arolelana hlooho ea tsie”.

86 Khosa and Others v Minister of Social Development and Others; Mahlaule and another v Minister of Social Development, 2004 6 BCLR 569 (CC).


BiBLioGrAphY

PublicationsConstitution of Lesotho of 1993. Constitution of the Lesotho National League

of Visually Impaired Persons of 1986 (as amended in 2004).

Constitution of the Republic of South Africa of 1996.

Government of Lesotho Draft National Shelter Policy Ministry of Local Government and Chieftainship Affairs, 2009.

Government of Lesotho Brochure prepared by the Department of Social Welfare of the Ministry of Health and Social Welfare (undated).

Government of Lesotho Central Bank of Lesotho Quarterly review Vol. XXIX, No. 1 2008.

Government of Lesotho Labour Force Survey: Employment Policy Formulation and Labour Market Analysis (LES/004/94) Ministry of Labour and Employment and the Bureau of Statistics, 1999.

Government of Lesotho Industrial Relations Section’s report for the period January to December 2007 Industrial Relations Section, 2007.

Government of Lesotho Lesotho census of population and housing for 2006: Preliminary report Bureau of Statistics, Ministry of Finance and Development Planning, August 2007.

Government of Lesotho Ministry of Education and Training Annual Budgets 2005/2006 and 2006/2007.

Government of Lesotho Ministry of Education and Training Statistical Bulletin, 2005.

Government of Lesotho Minister of Finance and Development Planning National Budget Speech 2009.

Government of Lesotho National Policy on Orphans and Vulnerable Children Ministry of Health and Social Welfare, 2005.

Government of Lesotho National Social Welfare Policy Ministry of Health and Social Welfare, 2004.

Government of Lesotho Lesotho Vision 2020: Empowerment for Prosperity Ministry of Finance and Development Planning, 2004.

Government of Lesotho The Poverty Reduction Strategy 2004/05–2006/07.

Government of Lesotho/Expanded Theme Group on HIV/AIDS Turning a Crisis into an Opportunity: Strategies for Scaling up the National Response to the HIV/AIDS Pandemic in Lesotho Third Press Publishers, New Rochelle, New York, 2004.

International Labour Office Social Security Workers’ Education Guide Geneva, 1992.

Labour 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 of 1973.

Government of Lesotho Schedule of monthly payments from the Republic of South Africa March 2008.

Metal Industries Benefit Fund Administrators/ Office of the Compensation Commissioner /Transnet Pension Fund Monthly Pensions Monthly Pensions: The August monthly payments schedules 2008.

Agreement between the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho on the Facilitation of Cross Border Movement of citizens of the Republic of South Africa and the Kingdom of Lesotho of 19 June 2007.

Government of Lesotho National HIV/AIDS Policy: Powered to Conquer HIV and AIDS National AIDS Commission, 2006.

Olivier MP, Smit N and Kalula ER Social Security: A Legal Analysis (LexisNexis Butterworths 2003).

Regional Evidence Building Agenda about REBA Case Study Briefs: Regional Hunger and Vulnerability Programme (RHVP) No. 3 November 2007.

Shannon, H.S. and Lowem G.S. “How Many Injured Workers Do Not File Claims for Workers Compensation Benefits?” 2002


American Journal of Industrial Medicine No. 42, 467-473.

UNHCR Helping Refugees: Introduction to united Nations High Commissioner for Refugees 2005.

LegislationLabour Code Wages (Amendment) Order (Legal

Notice No. 169 of 2007). Lesotho African Pioneer Corps (Pensions) Act 15

of 2000.Lesotho Aliens Control Act 16 of 1966.Lesotho Deferred Pay Act 19of 2008.Lesotho Labour Code Order 24 of 1992.Lesotho Old Age Pension Act 3 of 2005.Lesotho Old Age Pensions Regulations, Legal

Notice 75 of 2007.Lesotho Pension Scheme (Corporate Bodies) Act

of 1979.Lesotho Pensions Proclamation 4 of 1964.Lesotho Public Officers Defined Contribution

Pension Fund Act 8 of 2008.Lesotho Public Service Regulations 78 of 2008.Lesotho Public Service Regulations 16 of 1969 Lesotho Refugees Act 18 of 1983 (amended

1986).Lesotho Workmen’s Compensation Act 13 of

1977.Lesotho Workmen’s Compensation Trust Fund

Regulations 42 of 1985.

CasesKhosa and Others v Minister of Social Development and others; Mahlaule and another v Minister of Social Development 2004 6 BCLR 569 (CC).

InterviewsHape, M. Information Officer of the Ministry

of Home Affairs, Public Safety and of Parliamentary Affairs (15 September 2008).

Housing Officer, Ministry of Local Government and Chieftainship Affairs (11 September 2008).

Lebitsa, T. Migrant Liaison Officer of the Department of Labour, Ministry of Labour and Employment (11 September 2008).

Lehlaha, M. Community Officer of Habitat for Community, Maseru, Lesotho (11 September 2008).

Makhakhe, M. Director of Health Planning and Statistics of the Ministry of Health and Social Welfare (21 August 2008).

Marketing Manager, Lesotho Housing Cooperation and Development (10 September 2008).

Matsoso, M. Commissioner of Labour of the Ministry of Labour and Employment (16 September 2008).

Mokhethea, M. Human Resources Manager of the Ministry of Labour and Employment (14 July 2009).

Molapo, M. Acting Inspection Manager, Ministry of Labour and Employment (9 September 2008).

Ntsane, L. Ministry of Public Service (15 September 2008).

Rahalo, C. Administrator of the Lesotho National League of Visually Impaired Persons (LNLVIP) (18 September 2008).

Ramathe, M. Director of Immigrations of the Ministry of Home Affairs, Public Safety and Parliamentary Affairs (10 September 2008).

Retselisitsoe, T. Principal Social Worker, Ministry of Health and Social Welfare, Department of Social Welfare (18 September 2008).

Sefali, F.T. Commissioner of Refugees of the Ministry of Home Affairs and Public Safety and Parliamentary Affairs (10 September 2008).

Thulo, T. Commissioner of Pensions of the Ministry of Finance and Development Planning (12 September 2008 and 10 July 2009).

89ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS iN MAUritiUS

Chapter 3

ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND

thE portABiLitY of SoCiAL BENEfitS iN MAUritiUS

Nunkoomar DEERPALSING

1. MAtriCES oN ACCESS to SoCiAL SECUritY iN MAUritiUS

Matrix 1: Access to social services/social security


Social assistance







Citizens Yes Yes Yes Yes

Permanent residents No Yes, residence

conditions applyYes, residence conditions apply

Yes, in theory;no, in practice


No Yes, residence conditions apply

Yes, residence conditions apply

Yes, in theory;no, in practice

Refugees No, not applicable

No, not applicable No, not applicable No, not

applicable

Asylum seekers No, not applicable

No, not applicable No, not applicable No, not

applicable


No, they are deported when found





Matrix 2: Access to social services/social security (continued)






Public housing

Schooling (public, private)

Citizens Yes, free Yes, under labour law Yes Yes, free

Permanent residents Yes, as out-pa-tients, free

Yes, under labour law No

Yes, in govern-ment

schools, freeTemporary residents (including contract

migrants)

Yes, as out-pa-tients, free

Yes, under labour law No

Yes, in govern-ment

schools, free

Refugees Not applicable(N/A) N/A N/A N/A

Asylum seekers N/A N/A N/A N/A


N/A. Are deport-ed when found N/A N/A N/A

Matrix 3: (Ex)potability of benefits










Citizens

Universal benefits only to the UK; occupational and private, yes

Same as above Same as above Same as above

Permanent residents






Refugees N/A N/A N/A N/A













N/A, they are deported




2. oVErViEW of forMS of SoCiAL SECUritY

2.1 Background information

Mauritius is a small island of about 2000 square kilometres with a population of 1 260 000.1 It is one of the most densely populated countries in the world. The economy of the country relies mainly on manufacturing, tourism, sugar production, financial services, including global business and a nascent ICT sector, seafood processing and high-class property development.

The population is made up of 623 000 males and 637 000 females, with 23.3% below the age of 15, 66.7% aged between 15 and 59 and 10% being 60 years and over. The population over the age of 60 is projected to triple over the next 40 years. Life expectancy at birth is 69.1 years for male and 75.8 years for females. Life expectancy at age 60 is around 16.3 years for males and around 20.3 years for females. The present pensioner support ratio of 7:1 is projected to go down to 2.3:1 in 40 years as a result of the ageing population.

The labour force of Mauritius is estimated to be around 548 000, of which 502 000 are employed and 46 800 being unemployed. The participation rate is 64.1% for males and 35.9% for females. The unemployment rate is 8.5%.

The total number of registered unemployed at the end of June 2008 stood at 21 630 (7 668 males and 13 962 females). In addition to the registered unemployed, there are 12 167 jobseekers (8 714 males and 3 453 females), who although already in employment, were registered at the Employment Information Centres, in search of a better job.

For the month of June 2008, the number of new work permits issued was 853. The majority of the new work permits issued were for the manufacturing sector (625). Out of the total of 853 new work permits issued, 349 were allocated to Bangladeshi workers, 259 to Indian and 136 to Chinese workers.

The number of work permits renewed for the month of June 2008 amounted to 1 329, out of which 1 153 were for the manufacturing sector. The majority of the work permits

1 Figures quoted are from the Central Statistical Office (http://www.gov.mu/portal/site/cso) or have been obtained from the National Pensions Division of the Ministry of Social Security.


renewed was for Bangladeshi, Chinese and Indian workers, with 362, 306 and 302 permits respectively.

The number of valid work permits at the end of June 2008 stood at 36 736, comprising 25 516 new work permits and 11 220 renewals.

The annual average real growth rate of the economy is around 5% and GDP per capita is around US$6 440, with a Purchasing Power Parity (PPP) of US$11 200. The population below the relative poverty line is 8%, with a GINI coefficient of 0.39.

Mauritius is a welfare state. It has a comprehensive social security system for the whole population and various other social protection schemes. Education is free from primary to university level, with compulsory education up to the age of 16. Health care (including tertiary care, like heart surgery) is also free. Basic foodstuffs (rice and flour) as well as housing for the lower middle-income group are heavily subsidised. Income support is provided to households with low income. The government provides annual grants to a number of NGOs that cater for the specific needs of handicapped persons and vulnerable groups.

2.2 Social services/forms of social security

The social security framework is made up of the following:

Social assistance schemes and universal non-contributory pensions for elderly persons ��aged 60 and over, disabled persons between 15 and 59 years, all widows up to 60 years, all orphans up to 20 years and children, not exceeding three, of all disabled persons and widows – first pillar.Contributory pension schemes for both the public sector and the private sector, ��including a Transitional Unemployment Benefit for redundant workers in the private sector – second pillar.Provident fund (National Savings Scheme) for both the public sector and the private ��sector – third pillar.Private occupational pension schemes for the private sector – fourth pillar. ��

Subsidies on food items and other services, free education up to tertiary level, free ��health care, including tertiary health care, and free transport for the elderly, disabled persons and students – fifth pillar.

2.3 first pillar – Social assistance schemes and basic universal pensions

The social assistance schemes are made up of payment of social aid under the Social Aid Act and unemployment hardship relief (UHR) under the unemployment Hardship Relief Act. These schemes are means-tested. A number of NGOs receive financial assistance from the government in order to help physically challenged persons.


2.3.1 Social aid

Social aid is paid to heads of households with no income or limited income where it is established that the head of the household is unable to earn a living because of ill health, sudden loss of employment, imprisonment or abandonment by spouse. Under an income support scheme, an additional amount is paid to beneficiaries of social aid and UHR. This additional amount, which depends on the number of persons in the household, is meant to allow these beneficiaries to cope with rising prices of staple foodstuffs. Income support is also paid to poor beneficiaries of basic universal pensions and to about 10 000 households with low income but who are not in receipt of any welfare benefit. Social aid clients are also entitled to refunds for spectacles, examination fees of children taking part in examinations for School Certificate and Higher School Certificate, purchase of school materials, travelling expenses to attend medical treatment, purchase of dentures and funeral expenses. An additional allowance is payable for disabled children. There is also provision for payment of an allowance for fire victims, cyclone refugees, flood victims and in cases of birth of more than one child after confinement. There are around 15 000 social aid cases. The amount paid as social aid in 2007–2008 was Rp 485 million, representing 0.9% of government expenditure.

2.3.2 Unemployment Hardship Relief

Unemployment Hardship Relief is paid to unemployed heads of households with no income or limited income if they are registered as unemployed and are actively looking for work. There is a low take up rate for this benefit (around 200 cases only) because of the low rate of the benefit.

2.3.3 Basic Universal Pensions

Basic Universal Pensions constitute the largest part of the social security system in Mauritius. The following benefits are payable on a universal basis under the National Pensions Act (NPA):

Basic Retirement Pension (BRP) for all residents 60 years and over – 136 205 cases.��

Basic Widow’s Pension (BWP) to all widows up to 60 years – 22 431 cases.��

Basic Invalid’s Pension (BIP), from 15 years up to 60 years, to those persons who ��are found to be at least 60% disabled over a minimum period of 12 months – 26 351 cases.Basic Orphan’s Pension (BOP) and guardian’s allowance – 410 cases.��

Child Allowance to beneficiaries of BWP and BIP for not more than three children, ��until age 16 or age 20 if fulltime students – 17 864 children.


2.3.4 Carer’s Allowance

A Carer’s Allowance is also paid to beneficiaries of BRP and BIP where they are found to be so severely disabled as to require the constant attendance of another person. The number of BRP cases in receipt of this additional pension is 16 668 and 7 563 for BIP cases.

There are three rates of payment of BRP. Those aged 60 to 89 are paid at the rate of Rp 2 802 a month,2 Rp 8 335 for those aged 90 to 99 and Rp 9 461 for centenarians. The amount payable to the age group 60 to 89 years represents about 18% of the national average wage. The amount payable as BWP and BIP is Rp 2 523 a month. The total amount paid as basic pensions in 2007–2008 was Rp 6.3 billion, representing 12.4% of government expenditure and 2.7% of GDP.

The Ministry of Social Security and National Solidarity, Senior Citizens Welfare and Reforms Institutions is responsible, among other things, for the implementation of the Social Aid Act, the unemployment Relief Act and the National Pensions Act. This Ministry carries the largest government budget (excluding debt servicing).

2.4 Second pillar – Contributory schemes

The second pillar of the pension system is made up of a contributory scheme under the National Pensions Act for private sector workers as well as contributory schemes for civil servants, employees of Local Authorities and employees of parastatal bodies.

2.4.1 Contributory scheme under NPA

Under the contributory part of the National Pensions Act, all employers in the private sector (including those employing a single person or household workers) and their employees are required to pay contributions to the National Pensions Fund (NPF). Employers are required to pay contributions at the rate of 6% of prescribed insured wages and their employees contribute at the rate of 3%. Large employers in the sugar industry contribute at the rate of 10.5% but their employees are entitled to a higher rate of contributory pension. Self-employed persons can contribute to the NPF on an optional basis. In spite of the fact that there is a subsidy of 50% by the NPF for self-employed persons, very few have chosen to contribute to the scheme. About 14 500 private sector employers pay contributions to the NPF on behalf of about 280 000 employees. The NPF has total assets of Rp 55 billion, which represents around 23% of GDP. The contributory part of the NPA is a defined benefit scheme, based on career average inflation-proofed earnings. The fund is managed by an Investment Committee, which is a tripartite statutory body made up of professionals (accountants, actuaries, economists, financial analysts, etc.). An actuarial valuation is carried out every five years. The last actuarial report did not recommend any amendment to the scheme as it was found to be fully sustainable over the next 40 years in its present form.

2 Rate of exchange: US$1 = Rp 30.98.


The following contributory pensions are payable under the contributory part of the NPA:

Contributory Retirement Pension (CRP) – 44 408 cases.��

Contributory Widow’s Pension (CWP) – 8 860 cases.��

Contributory Invalid’s Pension (CIP) – 6 165 cases.��

Contributory Orphan’s Pension (COP) 96 cases.��

Industrial Injury Benefits.��

The maximum CRP payable is at present about one third of insurable salary, but employees of large employers in the sugar industry are entitled to about 50% as CRP. CIP and CWP are paid at a maximum rate of about one sixth of insurable salary (one fourth for the sugar sector). A widow is entitled to inherit the CRP payable to her deceased husband. A lump sum representing 12 months’ CWP is payable on remarriage. COP is paid at the rate of 15% of a contributory pension that was payable to any deceased parent, there being no limit to the number of orphans entitled to this benefit. It should be noted that the maximum contributory pension payable (one third of insurable salary) should be taken in conjunction with the universal basic retirement pension which represents about 18% of the national average wage and about 30% of the basic salary of a skilled worker.

2.4.2 Inflation proofing

The contributory part of the National Pensions Scheme is designed to work on a pension point system. Contributions paid earn pension points and each pension point is assigned a pension value. The total number of pension points earned and the final value of a pension point at time of retirement are taken into consideration for the computation of CRP. The floor and ceiling (of wages) on which contributions are payable are increased every year in line with the annual increase in the national average earnings (NAE). The amount of contributions as well as the value of a pension point are equally increased every year in line with annual increases in NAE. Contributory pensions in payment are increased every year in line with annual increases in prices.

Industrial Injury Benefits (IIB) that are payable under the NPA are the following:

Industrial Injury Allowance (IIA).��

Lump sum for permanent disablement of less than 20%.��

Disablement pension for permanent disablement of at least 20%.��

Survivor’s pension.��

Allowances for constant care attendance, medical expenses and replacement of ��damaged prostheses.

The employer is required to pay the full insurable salary during the first two weeks of total temporary incapacity. From the third week, the NPF pays 80% of the insured wage for a maximum of 36 months. The lump sum payable for permanent disablement of less than 20% is equivalent to the product of eight times the insured annual salary and the degree


of disablement. For 100% permanent incapacity, the disablement pension is equivalent to 80% of the insured salary. The pension payable for disablement ranging from 20% up to 99% is the product of 65% of the insured salary multiplied by the degree of disablement. The widow or a disabled widower is entitled to a survivor’s pension of 50% of insured salary. Orphans are entitled to 7.5% of insured salary as pension.

2.4.3 Public sector

Employees in the public sector, except those of parastatal bodies, were entitled to budget-based non-contributory retirement pensions until 30 June 2008. Employees of parastatal organisations were entitled to contributory pensions, with contributions being paid by employers only. From 1 July 2008, all employees in the public sector have to contribute 6% of their salary to a fund. However, they have been granted an equivalent increase in their salary with the result that, to all intents and purposes, their retirement pensions are fully financed by the government, local authorities or parastatal organisations.

The maximum retirement pension payable in the public sector represents two thirds of final salary after 400 months of service. The normal age of retirement used to be 60 years up to 31 July 2008 but it is being increased to 65 years as of 1 August 2008 over a period of 10 years. Pension rights of employees already in employment are preserved and they can opt to retire at 60 years or at the new retirement age. However, the retirement age for new entrants will be 65 years and they will have to contribute for 460 months to become entitled to the full pension of two thirds of their final salary. There are provisions for early retirement as from 55 years, or even earlier for special classes of employees. Judges can retire at 67 years. Survivors’ pension is contributory by both employers and employees. There are around 80 000 public sector employees and 23 000 pensioners in this sector.

Public sector employees pay contributions to a family protection scheme at the rate of 2% of their salary for a survivors’ pension (widow, widower and child benefit). Public sector employers have to pay a matching contribution of 2% but are responsible for making up for any shortfall in the fund, which is operated on a pay-as-you-go basis.

There is no disability benefit in the public service but there is the possibility for public officers to retire after 10 years of service with a reduced retirement pension based on years of service and the salary received at the time of retirement. A lump sum is payable where the employee has served for less than 10 years.

2.4.4 Transitional Unemployment Benefit

A scheme was passed in the National Assembly in July 2008 in the context of a Workfare Programme. It introduced the concept of “flexicurity” under which hiring of workers and termination of employment under labour legislation are made more flexible while redundant workers are provided with enhanced social security protection and ample opportunities to upgrade their skills in order to become re-employable in better jobs. Under this programme, redundant workers in the private sector will be entitled to join


any one of three services being provided, namely registration with the Employment Service with the view to securing another employment, joining a training programme for upgrading of skills to become re-employable or setting up a business with the help of the Small Enterprises and Handicraft Development Authority. Pending successfully joining any of these three schemes, the redundant employees will be paid a transitional unemployment benefit for a maximum of 12 months at a rate of 90% of insured salary for the first three months, 60% for another three months and at 30% for the next six months. This scheme would be financed from four sources. Employees would be required to pay an additional contribution of 1% of insured salary, employers will also pay 1% of contributions for this purpose as well as a recycling fee on behalf of each worker dismissed for redundancy. The government would top up any shortfall, more particularly at the inception of the scheme. This scheme would become operational on a date to be fixed by proclamation.

2.5 third pillar – the National Savings fund (NSf)

The National Savings Fund constitutes the third pillar of our social protection system. Contributions have to be paid on behalf of all public employees. With regard to the private sector, contributions are payable on behalf of all workers who are insured workers under the National Pensions Scheme. In fact, the National Savings Scheme is administered by the staff of the National Pensions Scheme. Contributions are therefore not paid on behalf of non-citizens unless they qualify to become an insured worker under the NPS. Only non-citizens who have at least two years of residence and are in possession of a valid work permit qualify to become an insured person. There are around 15 000 employers contributing to the NSF on behalf of about 350 000 employees.

The third pillar is a provident fund and was introduced in 1994. Employers in both the public sector and the private sector are required to pay contributions at a rate of 2.5% of insured salary to the National Savings Fund. A lump sum, representing contributions paid and accrued returns on investments, is paid on retirement, death or redundancy. The fund has a balance of around Rp 9 billion.

2.6 fourth pillar – occupational pension schemes

Private sector employers have tax incentives to set up private occupational pension schemes. There are more than 1 000 private occupational pension schemes in Mauritius. Most of them are defined benefit schemes. The Financial Services Commission is the regulatory body for the regulation and supervision of these schemes. These schemes provide additional pension coverage to a small proportion of private sector workers. Contributions paid by employers to such schemes are logged as expenses for the purposes of income tax.


2.7 fifth pillar – free services

The fifth pillar is made of free health services to all persons residing in Mauritius, free education to fulltime students up to tertiary level, financial support to NGOs, free transport to the elderly and students, subsidies on cooking gas, rice and flour and various allowances and grants to small planters and breeders as well as for the construction of houses for the low-income group.

The five-pillar model in Mauritius very much resembles the five-pillar model advocated by the World Bank in its report “Old-Age Income Support in the Twenty-First Century: An International Perspective on Pensions and Reform” in February 2005. It is worth noting that the five-pillar system was completed as far back as 1994 when the World Bank published its famous blueprint on pension reforms based on the three-pillar model. When the World Bank came out with its five-pillar model in February 2005, Mauritius had already been implementing its five-pillar model for 11 years.

2.8 housing

According to a survey carried out by the Central Statistical Office in 2000, 86.5% of households owned the housing unit they occupied, 4.1% had free housing facilities and 9.3% were tenants. The government provides support for households with low income to own a housing unit. The Mauritius Housing Company, which is mainly owned by the government, provides housing finance for the construction of houses. Households with low income are entitled to loans at a subsidised rate of interest under a Government Sponsored Loans (GSL) scheme. The National Housing Development Company (NHDC) has been established by the government to provide the following services to households with low income:

Housing units with all amenities on a hire-purchase basis.��

Site and services, with all amenities, for the construction of a house.��

Cash grant for casting of concrete roof slabs or for purchase of materials for building ��a house.

Housing facilities granted by companies owned by the government are restricted to citizens of Mauritius.

2.9 Health Facilities and Sickness Benefit

The government operates a free health service, including tertiary health care, for every person in Mauritius, including non-residents and migrants. There is therefore no social insurance scheme for health care.

Payment for sickness benefit rests with employers. A worker in the private sector is entitled to 21 days leave with full pay as sickness benefit a year after 12 months of continuous service. Employees of the public sector are also entitled to 21 days of sick leave annually


but can “bank” unutilised sick leave to a maximum of 110 days. This accumulated sick leave can be cashed on retirement or used during prolonged illness.

The above-mentioned benefits are available to all employees on a permanent and pensionable basis, irrespective of their status as citizens or foreigners.

2.10 Education

Education is free in Mauritius from primary to secondary level and is also free up to university level for fulltime students. The enrolment rate is 100% at primary level. The government provides free pre-primary education to children who attend classes set up for them in primary schools operated or sponsored by the government.

For the financial year 2008/2009, government expenditure on education was estimated at about Rp 8 020 million, representing 10.7% of total government expenditure. Pre-primary schools numbered 1 070 in March 2008 with an enrolment of 36 242 children (50% boys, 50% girls). The Gross Enrolment Ratio (number of students enrolled per 100 population) for ages 4 to 5 works out to 94% with an average of 14 pupils per teacher. As of March 2008, there were 299 primary schools with 119 022 pupils (51% boys, 49% girls). Total staff comprised 8 072 persons with 4 125 general-purpose teachers and 1 370 Oriental language teachers. The Gross Enrolment Ratio for ages 6 to 11 is 101% and the pupil/teacher ratio 29. In March 2008, there were 180 schools providing secondary education in the academic stream. The secondary school enrolment was 116 503 (48% boys, 52% girls) and the number of teachers was 7 408. The Gross Enrolment Ratio for ages 12 to 19 works out to 69% and the pupil/teacher ratio 16. Pre-vocational education was dispensed in 138 schools in March 2008 with an enrolment of 8 495 students (63% boys, 37% girls) and 645 teaching staff. The pupil/teacher ratio was 13. Tertiary level enrolment went up by 5.4%, from 33 230 in 2006 to 35 023 in 2007.

3. ACCESS to SoCiAL SErViCES/SoCiAL SECUritY for CitiZENS AND NoN-CitiZENS

3.1 first pillar

3.1.1 Social aid

Regulation 3(1) of the Social Aid Regulation, 1984, provides that social aid is payable to a citizen of Mauritius residing in the country. On the other hand, Section 4 of the Deportation Act, 1968, provides that the Minister in charge of defence and internal security may require a destitute person who “does not belong to Mauritius” and “who is, or is likely to be, a charge upon public funds” to be deported and not to be allowed to enter the country. Social aid is therefore not payable to non-citizens.


3.1.2 Unemployment hardship relief

This benefit, which is conceptualised on the same principles as those for social aid, is only payable to a citizen of Mauritius residing in the country. It is therefore not payable to non-citizens.

3.1.3 Universal benefits

Regulation 3(1) of the National Pensions (Non-Contributory Benefits) Regulations, 1977, provides that “no claim shall be entertained unless the claimant is residing in Mauritius”. Under this Regulation, the non-contributory universal benefits are payable to citizens as well as to non-citizens subject to certain residence qualifications.

With regard to the non-contributory retirement pension, “a citizen under the age of seventy must have resided in Mauritius for at least twelve years in aggregate since attaining the age of 18. However, there is no residence qualification for a citizen who has attained the age of 70. A non-citizen must have resided in Mauritius for at least fifteen years in aggregate since his fortieth birthday, three of those fifteen years being immediately before his claim”.

As far as the Basic Widow’s Pension is concerned, where both spouses are non-citizens, the widow must have resided in Mauritius for at least five years in aggregate in the 10 years immediately before the claim, one of those five years being immediately before the claim. In all other cases, no residence qualification is required for payment of this pension.

With regard to invalidity and orphan basic pensions, a non-citizen must have resided in Mauritius for at least five years in aggregate in the 10 years immediately before the claim.

A period of absence not exceeding a continuous period of six months is disregarded for the purpose of assessing the residence qualification of a claimant or beneficiary. In practice, absences from Mauritius not exceeding six months in a year are not counted as absences from Mauritius. Similarly, absence from Mauritius as a result of continuation of employment abroad or employment outside Mauritius on board a vessel is not considered as absence from Mauritius.

3.2 Second pillar

3.2.1 Private sector

Contributions are paid on behalf of employees in the private sector to the National Pensions Fund (NPF) under a National Identity Card number. This ID card is issued to citizens only. However, for the purposes of payment of contributions to the NPF, a special number, similar to the ID number, is issued to those non-citizens who have resided in Mauritius for at least two years and are in possession of a valid work permit. In fact, Regulation 3 of the National Pensions (Non-Citizens and Absent Persons) Order of 1978 provides that all non-citizens who have less than two years residence in Mauritius are not entitled to become insured persons under the National Pensions Scheme although they


may be in possession of a valid work permit and be lawfully employed. Such persons do not pay contributions to the NPF and are therefore not entitled to any benefit under this scheme. Non-citizens with a valid work permit who qualify to become insured persons under the NPF after two years’ residence in Mauritius are required under the law, along with their employers, to pay contributions to the NPF at the same rate as is the case for citizens. In such cases, these non-citizens become entitled to the same benefits under the scheme as any other citizen employed in the private sector.

When the contributory part of the National Pensions Scheme was introduced in 1978, it was decided as a matter of policy that contributory benefits would be paid in foreign currency to foreign workers returning to their country. Exchange control on foreign currency existed at that time. In order to facilitate payment of contributory benefits abroad, arrangements were made with the Bank of Mauritius for authorising such payments abroad. There has been no exchange control in Mauritius since 1994. It is therefore quite easy to pay contributory benefits to foreigners who have returned to their country or to any other country.

The procedure for payment of contributory benefits abroad consists of processing claims which are received at the Benefits Branch of the Ministry of Social Security. Such claimants are required to produce their bank account number in any of the local banks so that any benefit payable to them can be easily transferred to their respective bank account in their country of residence. Once a determination of the claim is made in favour of these claimants, the amount of the benefit is paid into their local bank account on a regular basis. It is the normal practice to require such claimants to produce a “life certificate” every three months from recognised institutions – like banks, notaries, doctors, and solicitors – to certify that they are still alive before the payment can be made.

The number of non-citizens with valid work permits and at least two years’ residence for whom contributions are being paid to the National Pensions Fund is 2 474 although the total number of non-citizens with a valid work permit is around 36 700. This low figure can be explained by the fact that most work permits are issued for a maximum period of two years. The number of cases in which contributory pensions are being paid to non-citizens is quite low. In fact, there are only 42 cases in which contributory pensions are being paid to non-citizens by the NPF (34 cases of contributory retirement pension and 8 cases for contributory widow’s pension).

There is no payment being made into a contributory invalid’s pension or a contributory orphan’s pension. It would seem that no claim for any of these two benefits has been received so far. In any case, it would be almost impossible to entertain a claim for a basic invalid’s pension (except from a claimant from the UK), as payment of this pension depends on medical certification by a Medical Board, which can only operate in Mauritius. It is possible for a claimant to file a claim for this pension while still in Mauritius and for the pension to be paid abroad. However, the duration of a medical certificate from the Medical Board is normally limited to a maximum period of five years. It would therefore


not be possible to continue payment of this pension after the expiry of the period mentioned in the medical report. It is possible to entertain such a claim from the UK as Mauritius has signed a Convention in 1981 on social security with this country. Under this Convention, arrangements can be made with the UK Department of Works and Pensions for a disability claim to be registered in the UK and for the medical certification to take place in that country. Payment can be made through a local bank or under such arrangements as can be mutually agreed upon by both parties to the Convention.

3.2.2 Public sector

It is open to the public sector to employ foreign workers. Normally, foreign workers are employed in scarcity areas. Foreign workers are normally employed on fixed-term contracts, usually varying from one to three years. Foreign workers as well as citizens who are employed on fixed-term contracts are not considered to be permanent and pensionable employees. Instead, such “contract” employees are paid a gratuity representing 16% of their monthly pay to cover the value of pension liabilities which the public sector would have had to shoulder if such employees were on a permanent and pensionable establishment. Foreign workers can also be employed on a permanent and pensionable basis but this occurs vary rarely. Foreign workers who are employed on a permanent and pensionable basis are afforded the same treatment as citizens for the purposes of entitlement to pensions payable in the public sector. Such pensions can be paid abroad in foreign currency. There are a few foreign workers in the public service.

Section 94 of the Constitution of Mauritius provides for guarantees to be afforded to pensioners and would-be pensioners of the public service. Among other things, this Section provides that “any person who is entitled to the payment of any pensions benefits and who is ordinarily resident outside Mauritius may, within a reasonable time after he has received that payment, remit the whole of it to any country of his choice outside Mauritius”. Originally, this provision in the Constitution was meant to guarantee payment of pensions by the government of Mauritius to UK citizens who were employed in the Mauritian public service before and after independence in 1968. It now applies to citizens and non-citizens who decide to settle outside Mauritius after qualifying for a pension from the public service.

The Accountant General (Treasury Department) is responsible for payment of pensions to civil servants who have retired, including non-citizens who had been employed on a permanent and pensionable basis. The Treasury requires the submission of a life certificate on a regular basis from all retirees, including those who have settled abroad, in order to ensure that the pension is being properly paid. The pension is paid into the bank account of those who have settled abroad or the amount payable is transferred to the Mauritian Embassy in the country where the pension has to be paid. The Embassy is then responsible for making the necessary arrangements for the pension to be paid to the retiree. This procedure for payment of the pension applies to citizens as well as non-citizens who live outside Mauritius.


3.2.3 Transitional Unemployment Benefit

This scheme applies to redundant workers in the private sector. In theory, the scheme applies to all redundant workers, including those non-citizens who are employed under a valid work permit. In practice, it is most likely that such redundant non-citizens would not be covered under the scheme, as the issue of a work permit is conditional on the employer taking responsibility for all foreign workers during the whole period for which the work permit is issued. Employers are required under conditions attached to the issue of work permits to repatriate foreign workers for whom work is no longer available or who are unwilling to continue to work in accordance with the terms of the contract they signed or for any other reason. A cash guarantee sufficient to cover the costs of air ticket for repatriation purposes is required from employers who employ foreign workers.

3.3 third pillar – National Savings fund

Contributions to the NSF are paid on behalf of both public officers and private sector employees. The lump sum payable under this scheme is paid directly to the retiree, the redundant worker or to the legal representatives of the deceased worker. As is the case for payment of contributory benefits under the NPS, it is possible for the NPF, which is responsible for the management of this scheme, to pay into the local bank account of a non-citizen any lump sum to which he/she may be entitled. Any amount paid as a lump sum can be transferred to the country of residence of a non-citizen.

3.4 fourth pillar – private occupational pension Schemes

Employers in the private sector can employ non-citizens provided a work permit is obtained from the ministry of labour for each such employee. In most cases, foreign workers are recruited on a fixed-term contract and are therefore not entitled to join an existing private pension scheme sponsored by such employers. However, there is no impediment to foreign workers to become members of such schemes if they are employed on a contract of indefinite duration, as is normally the case for local employees. As there is no exchange control in Mauritius, it is possible for any benefit payable under such schemes to be paid to a non-citizen who qualifies. Payment is normally made into a bank account in a local bank, as is the case for payment of benefits under the NPS, and can be transferred abroad. Any tax due is deducted at source as Mauritius operates a pay as you earn (PAYE) system for income tax purposes.

3.5 fifth pillar

3.5.1 Health services

There is no public health insurance scheme in Mauritius. Citizens of Mauritius are entitled to free health care up to and including tertiary health care. Free health care is also


provided in public hospitals and health centres to any non-citizen who may be in need of treatment as an outpatient. Non-citizens who are admitted for treatment as in-patients are required to pay for such treatment.

3.5.2 free transport

Free transport on public buses is provided to every elderly citizen in receipt of a basic universal pension as well as to disabled persons in receipt of a basic invalid’s pension. Such free transport is also provided to foreign nationals over the age of 60 and disabled non-citizens in receipt of a basic invalid’s pension, provided they qualify for this pension.

3.5.3 Education facilities

Education facilities are provided free of charge to all children of citizens up to tertiary level in schools run or financed by the government. Free education facilities are provided in primary and secondary schools operated by the Ministry of Education as well as in confessional primary and secondary schools which are owned by various religious denominations and financed by the Ministry. Free education facilities are extended to children of non-citizens only in primary and secondary schools directly operated by the Ministry of Education. Children of non-citizens who are admitted to primary and secondary schools not directly operated by the Ministry of Education may be required to pay for school fees.

Free transport on public transport is provided to students of primary and secondary schools, whether directly operated by the Ministry of Education or financed by the Ministry. Fulltime students of the University of Mauritius are also entitled to such free transport facilities. Such free transport facilities are normally meant for children of citizens. However, it is difficult to distinguish between students who are children of citizens and those who are children of non-citizens. In practice, all students of primary and secondary schools, whether operated directly by the Ministry of Education or financed by the government are issued with a student’s pass, which entitles them to travel freely on public transport.

3.5.4 Subsidies

Rice, flour and cooking gas are heavily subsidised on a universal basis.

3.6 international migrants, non-citizens, residents and refugees

The main laws concerning non-citizens, including residents, are the following Acts of Parliament and regulations made under these Acts:

Constitution of Mauritius�� of 1968.Mauritius Citizenship Act�� RL 3/585 of 1968.Immigration Act�� RL 3/83 of 1973.


Passport Act�� RL 4/131 of 1969.Deportation Act�� RL 2/501 of 1968.Non-Citizen (Property Restriction) Act�� RL 4/71 of 1975.Non-Citizen (Employment Restriction) Act�� 15 of 1970 (published 17 May 1973).Recruitment of Workers Act �� 39 of 1993.Business Facilitation (Miscellaneous Provisions) Act�� 21 of 2006.

3.6.1 Refugees and asylum seekers

Mauritius has not ratified the 1951 Convention relating to the Status of Refugees or the 1967 Protocol. There are no refugees in Mauritius. It is the policy of the government not to entertain a request from any person to settle as a refugee in Mauritius. If any non-citizen is lawfully in Mauritius, for example on a tourist visa or a work permit, and asks to be considered as a refugee, that person is deported either to the country where he comes from or to a country willing to take that person as a refugee. Request for refugee status is a very rare occurrence in Mauritius.

Under the Constitution of Mauritius, any person who does not have the Mauritian citizenship or is not entitled to such citizenship under the Constitution is considered as an “alien”. The Constitution and the Citizenship Act lay down the conditions under which a person can become a citizen of Mauritius. These provisions are fairly restrictive.

3.6.2 Residents

The Immigration Act provides that “a citizen, a resident or an exempted person, shall be allowed to enter Mauritius or, being in Mauritius, to remain there so long as he holds his status of citizen, resident or exempted person, as the case may be”. Under this Act, there is no distinction between permanent residents and temporary residents. Every resident should be in possession of a residence permit issued by the Prime Minister’s Office. Among other conditions attached to a residence permit, a deposit is required “for any expense or charge likely to be incurred for his maintenance or support or for his repatriation” – Section 10(1).3

Mauritius exercises very strict control on persons holding residence permits or work permits and on “exempted persons” referred to above. Mauritius has no other choice in view of the fact that it is a small island and it is one of the most densely populated countries in the world. The Passport and Immigration Office operates a computerised system which allows the police to know the names of those persons whose approved duration of stay has expired and who have not left the country. There is no official figure or even an estimate of the number of persons who are unlawfully staying in the country.

3 “Exempted persons” include diplomats, persons appointed in the public service, tourists or visitors, persons in transit, bona fide students, artists and crew members.


Some officers of the Passport and Immigration Office estimate that there should not be more than 1000 persons at any one time unlawfully staying in the country.

In fact, the police have a “Tracking Team” which has the sole responsibility of looking for persons unlawfully staying in the country and for taking action for their repatriation. Money available from deposits made by residents or employers who apply for work permits is used for repatriation expenses in case the persons concerned do not hold a return ticket or are unable to pay for their air fare. In other cases, the police have funds dedicated to paying for repatriation expenses.

Work permits and accompanying residence permits were previously given for a maximum period of two years only in the case of skilled and semi-skilled workers. In view of the shortage of certain skilled workers, work permits can now be issued for a maximum period of four years. Work permits can be renewed but where in such cases the continuous duration of stay in Mauritius is expected to exceed five years, the holder of the permit is required to swear an affidavit to the effect that he/she will not apply for Mauritian citizenship. This is due to the fact that a person staying for five years in the country could make such an application. Except for certain categories of professionals, work permits are issued only at the request of employers. The Ministry of Labour and Employment has laid down strict criteria for issuing work permits.4

4 Additional information can be obtained at: http://www.gov.mu/portal/site/laboursite and at http://www.gov.mu/portal/site/dhasite.

BiBLioGrAphY

PublicationsWorld Bank Old-Age Income Support in the

Twenty-First Century: An International Perspective on Pensions and Reform 2005.

LegislationBusiness Facilitation (Miscellaneous Provisions) Act 21 of 2006.Constitution of Mauritius of 1968.Deportation Act RL 2/501of 1968.Immigration Act RL 3/83of 1973.Mauritius Citizenship Act RL 3/585 of 1968.National Pensions (Non-Citizens and Absent Persons) Order of 1978.National Pensions (Non-Contributory Benefits) Regulations of 1977.

Non-Citizen (Employment Restriction) Act 15 of 1970 (published 17 May 1973).Non-Citizen (Property Restriction) Act RL 4/71of 1975.Passport Act RL 4/131of 1969.Recruitment of Workers Act 39 of 1993.United Nations Convention relating to the Status of Refugees, 1951. United Nations Protocol relating to the Status of Refugees, 1967.

Internet Sourceshttp://www.gov.mu/portal/site/laboursite.http://www.gov.mu/portal/site/dhasite.

107ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS iN SWAZiLAND

Chapter 4


thE portABiLitY of SoCiAL BENEfitS iN SWAZiLAND

Ericsson DLAMINI

1. iNtroDUCtioN: MAtriCES oN ACCESS to SoCiAL SECUritY

The social security system in Swaziland is fairly un-/underdeveloped. The system consists of social insurance and social assistance. Contingencies protected under social insurance include retirement/old age, disability/invalidity, survivors’ benefits and occupational injuries and diseases.1 Social assistance is in the form of a targeted and means-tested old age grant. The following matrices provide an overview of the various social security schemes in Swaziland and access to such schemes by citizens and different categories of non-citizens in Swaziland.

Matrix A: Access to social services/social security

Category of Person Covered

Social Assistance

Old Age Pension (public,


Disability Pension (public,




Citizens Yes Yes Yes NoPermanent Residents No No No No

Temporary Residents (including contract migrants)

No No No No

Refugees No No No NoAsylum seekers No No No NoUndocumented Non-citizens No No No No

1 Social Security Administration (SSA) “Swaziland” in Social Security Programmes Throughout the World (SSPTW): “Africa” (Social Security Administration 2009) 169.


Matrix B: Access to social services/social security (continued)




Sickness Benefits (public, occupation-

al, private)

Public Housing

Schooling (public, private)

Citizens Yes Yes No Yes

Permanent Residents Yes, public and private Yes, the employed No No


Yes Yes No No

Refugees Yes Yes No NoAsylum seekers Yes Yes No NoUndocumented Non-citizens Yes Yes No No

Matrix C: (Ex)portability of benefits


Social Assistance

Old Age Pension (public,


Disability Pension (public,




Citizens

Yes, statutes allow but it does not happen

No, but yes with regard to MVA

Yes, especially private and occupational

Yes, if employed

Permanent Residents Possible No, but yes with

regard to MVA


Yes, if employed


Possible No, but yes with regard to MVA

Yes, especially private and occupational Yes, if employed

Refugees Possible No, but yes with regard to MVA

Yes, if employed Yes, if employed

Asylum-seekers Possible No, but yes with regard to MVA


Yes, if employed

Undocumented Non-citizens Possible No, but yes with

regard to MVA


Yes, if employed


2. oVErViEW of forMS of SoCiAL SECUritY


2.1.1 old age grant

Swaziland’s social assistance system provides old age benefits. The old age grant is provided to males and females who are 60 years old and over. It is paid to persons who are considered needy, thereby requiring a means-test. The old age grant of E300 is paid quarterly.2 The Department of Social Welfare administers the social assistance programme.3

2.1.2 Health care

Swaziland provides health services to everyone in the kingdom through a public healthcare system in terms of the Public Health Act.4 Public Health Centres provide healthcare services at an affordable user fee. For as little as US$3, an outpatient receives full medical treatment. The rate is one tenth of what a patient would pay in a private clinic. In addition, HIV/AIDS patients who are willing to undergo treatment receive free antiretroviral (ARV) therapy. Person suffering from tuberculosis also receive free treatment. In the private sector, SOS clinics also provide free treatment to persons over the age of 60 who are unable to pay. Furthermore, state health policy requires that a person cannot be refused medical care due to his/her inability to pay.5

The state has also established two healthcare programmes aimed at facilitating medical treatment of Swazis abroad. The Civil Servants Referral Scheme was established to assist in evacuating public service employees abroad in cases of serious medical conditions. Non-public service employees can also access the Phalala Fund. The Phalala Fund was created to pay the medical fees of Swazis with no source of income who are referred abroad for medical attention.

2.2 Social insurance

The social insurance system consists of a provident fund, a public service pension fund and a workers’ compensation (occupational injury and disease) scheme.

2 The Lilangeni (plural – Emalangeni) is Swaziland’s currency. It is on par with South Africa’s Rand. 3 Social Security Administration (SSA): “Swaziland” in Social Security Programmes Throughout the

World (SSPTW): “Africa”, August 2009, 169.4 Public Health Act 5 of 1969.5 The Ministry of Health and Social Welfare has a policy that urges its nurses and doctors not only to

do their work legally, but also to honour their moral obligations to save lives by not denying a sick person treatment because he cannot afford to pay.


2.2.1 Swaziland National Provident fund

The Swaziland National Provident Fund was established in 1974 to provide retirement benefit for employed persons who become incapacitated.6 The provident fund covers all employed persons in Swaziland. All employers are required by law to become contributing members of the fund, and to pay a contribution for every eligible staff member. The fund is also open to employees who are not compelled to belong to the fund and to members of religious organisations on a voluntary basis.7 However, self-employed persons, persons employed in households, casual employees and non-citizens are excluded from the fund.8 Public service employees are protected by the Public Service Pensions Fund. The provident fund provides old age/retirement benefits, disability benefits and survivors’ benefits.

The employee and his/her employer each pay 5% of the employee’s remuneration. The maximum monthly earnings for contribution calculation purposes is E1 200. The old age benefit is paid from the age of 50, although an employee is eligible for old age benefits at the age of 45 if covered employment ceases; and at any age if a member is emigrating permanently). The benefit is calculated based on total employer and employee contributions plus at least 3% interest per year. The benefit may be paid as a lump sum, in instalments, or converted to an annuity.

A disability benefit is paid if the member is assessed with at least a partial permanent physical or mental disability. The disability benefit is calculated based on total employer and employee contributions plus at least 3% interest per year. The benefit may be paid as a lump sum, in instalments, or converted to an annuity.

Survivor benefits are paid to one or more dependents for the death of the fund member before retirement. The eligible survivor is the spouse. In the absence of a spouse, the eligible survivors are other dependents or other persons named by the fund member. The survivor benefit is calculated based on total employer and employee contributions plus at least 3% interest per year. The benefit may be paid as a lump sum, in instalments, or converted to an annuity.

2.2.2 Public Service Pensions fund

The Public Service Pensions Fund is a parastatal organisation that was established for the management and administration of pensions for government (public sector) employees. The scheme is run as a defined benefit (DB) pension scheme and provides retirement annuities, survivor/death benefits, disability benefits and other pension-related benefits for its members and their dependants.

6 Swaziland National Provident fund, available at http://www.snpf.co.sz/, accessed 3 September 2009.

7 Social Security Administration (SSA): “Swaziland” in Social Security Programmes throughout the World (SSPTW): “Africa”, August 2009, 169.

8 ibid.


2.2.3 Workers’ compensation/occupational injury scheme

Swaziland’s workers’ compensation/occupational injury and disease system is an employer-liability system, involving compulsory insurance with a private carrier.9 Employers must insure the assessed liability with a private insurance company. The scheme provides coverage to employees in the private and public sectors, trainees and apprentices. Those excluded are self-employed persons, household workers, certain types of contract workers, person employed in family businesses, and casual workers. The scheme is financed through the payment of insurance premiums by employers. Accidents that occur in the workplace as well as accidents that occur while commuting to and from work are covered.

The scheme provides compensation for temporary and permanent disability. In the event of temporary disability, the benefit is equal to 75% of the insured’s earnings and is paid after a three-day waiting period until full recovery or certification of permanent disability. The benefit is paid for a maximum of 24 months. The benefit may be paid as a lump sum calculated according to the expected duration of the disability. The minimum monthly earnings for benefit calculation purposes are E75 while the maximum is E500.

As regards permanent disability where an employee is assessed with a total disability, a lump sum is paid equal to 54 times the insured’s monthly earnings at the time of the accident. In addition, a constant-attendance allowance equal to 25% of the permanent disability benefit is paid as a lump sum. In case of partial permanent disability, a percentage of the full benefit is paid according to the loss of working capacity. Medical benefits are also provided, and include medical care, surgery, hospitalization, medicines, dental and eye care, transportation, appliances and medical care abroad if necessary (up to E6 325).

The workers’ compensation scheme also provides survivor benefits and a funeral grant. Dependents of employees who die as a result of an occupational injury or disease receive a lump sum equal to 48 times the deceased’s monthly earnings at the time of the accident, minus any permanent disability benefits paid to the deceased. Those dependents who are eligible are unemployed widows, disabled widowers and children. A reduced benefit is paid to survivors who were partially dependent on the deceased. A funeral grant of up to E300 is paid as a lump sum by the employer to cover the cost of the funeral.

2.2.4 Motor Vehicle Accident fund

A Motor Vehicle Accident Fund was established in terms of the Motor Vehicle Accidents Act.10 The MVA Fund was established to provide compensation for bodily injuries and/or death arising from a motor vehicle accident. The fund is financed through a fuel levy imposed by the Swazi Government for this purpose. The fund pays out compensation to

9 Workmen’s Compensation Act 7of 1983.10 Motor Vehicle Accidents Act 13 of 1991.


injured motorists, passengers and pedestrians, as well as survivor benefits to dependants of such persons.

2.2.5 Employment-related benefits

The Employment Act provides sickness benefits for those incapable of working due to ill health. Sickness benefits are aimed at covering the periods of loss of earnings. After three months’ continuous employment with the same employer, an employee is eligible, in each year of employment with that employer, for a maximum of 14 days sick leave on full pay and a maximum of 14 days sick leave on half pay.11 In the Public Service, the sick leave is six months on full pay.

Maternity leave is guaranteed in both the Regulation of Wages and the Employment Act, 1980.12 Women are entitled to up to 12 weeks maternity leave,13 although the employer is not obliged to pay wages during maternity leave.14 However, Wages Councils covering the 16 different industries in the Kingdom have negotiated and obtained reasonable paid maternity leave.

3. ACCESS to SoCiAL SErViCES/SoCiAL SECUritY for CitiZENS AND NoN-CitiZENS

3.1 introduction

Access to social security in Swaziland is premised on a person’s citizenship and/or residence status.


3.2.1 old age grant

As social assistance in the form of old age grants is non-contributory, it is accessible to citizens only. The permanent residents (who have not khonted or obtained citizenship), the temporary residents, refugees, asylum seekers and undocumented migrants cannot access it. The citizens access it at the known pay points and at Tinkhundla Centres, as well as chiefdoms.

11 S 129 of the Employment Act 5 of 1980.12 S 102 of the Employment Act 5 of 1980. 13 S 103(1) of the Employment Act of 1980 reads as follows: “Subject to subsection (2) maternity leave

shall not be less than twelve weeks, so arranged that the employee is allowed such period as she desires not exceeding six weeks before the date of confinement.”

14 S 107 of the Employment Act 5 of 1980.


3.2.2 Health care

In the case of health care, permanent residents, temporary residents, refugees, asylum seekers, refugees and undocumented migrants have partial access as they have a right to be treated in public health centres and clinics. In addition, they are free to access private and occupational-based health facilities. However, only Swazi citizens are fully covered and can access the Phalala Fund and the civil servants’ referral scheme.

3.3 Social insurance

Non-citizens are excluded from membership to the Swaziland National Provident Fund.15 This implies that permanent residents, temporary residents and refugees who are employed do not have access to the fund.

3.4 Employment-related sickness benefits

With regard to sickness benefits, citizens, permanent residents, temporary residents and undocumented migrants who are in formal employment are able to access it in the event that they fall sick while still employed and after completing probation.16

3.5 public housing

The Kingdom of Swaziland is still wanting in issues of public housing for citizens and non-citizens. There is no clear policy or legislation in this regard.

3.6 Schooling

The citizens’ OVCs and abandoned children can access the social assistance coverage in this regard. The non-citizens cannot and cannot access it. This is accessed at the Ministry of Health and Social Welfare by the qualifying persons.

3.7 Conclusion

While it appears that it is rather difficult for the non-citizens to access most of the social services obtainable in the country, what is clear is that these permanent residents, temporary residents, asylum seekers, refugees and undocumented migrants can access social insurance in the form of the Motor Vehicle Fund, the National Provident Fund and private health care.

15 S 7 of the Swaziland National Provident Fund Order 23 of 1974.16 S 129 of the Employment Act 5 of 1980.


4. (EX)portABiLitY of BENEfitS

4.1 introduction

Swaziland has not entered into an agreement with any country for the portability of benefits. It has also not signed nor ratified any of the international standards on portability of social security. Some of these include the ILO Migration for Employment Convention (Revised) 97 of 1949, ILO Unemployment Convention 2 of 1919, ILO Equality of Treatment (Social Security) Convention 118 of 1962 and ILO Maintenance of Social Security Rights Convention 157 of 1982. However, some Swazi statutory instruments provide for the portability of social security benefits.

4.2 public Service pension fund

The Public Service Pension Fund provides that at the option of the person to whom it is payable, a pension can be paid in either the United Kingdom, Swaziland or the country from which the officer was recruited or where he intends to reside. This will be paid in the currency of the country in which payment is made.17

4.3 Swaziland National provident fund

The Swaziland National Provident Fund Order18 makes provision for the conclusion of social security agreements by the fund and the portability of benefits. Section 45(1) of the Swaziland Provident Fund Order provides that:

The Government may enter into a reciprocal agreement with the government of any other country in which a fund or scheme similar to the Fund has been established, and there may be included in the agreement that: any period of membership of such fund or scheme in the country of such government may be treated as a period of membership of the Fund and vice versa.

The fund also provides benefits to an emigrating citizen. In this regard, benefits are paid to a contributing citizen who has obtained citizenship of another country. This member benefits fully from the fund as he/she has a full right to export it to the country of residence.

4.4 Motor Vehicle Accident fund

The other possible social insurance benefit where portability could be arranged are the Motor Vehicle Accident Fund and private healthcare insurance. In the event a non-citizen suffers bodily injury while on a visit to Swaziland, while driving or walking, he/she can access the fund even after returning to his/her country of origin. Similarly with health

17 Public Service Act 54 of 1968.18 Swaziland Provident Fund Order 23 of 1974.


care, if one is covered, irrespective of nationality or citizenship, one can access it even after returning to the country of origin.

4.5 Conclusion

Therefore it appears that in the Kingdom of Swaziland the extent to which and the conditions in which acquired social security benefits can be exported abroad is limited. It would appear, unfortunately, that old age social assistance and sickness benefits cannot be exported. However, seemingly the Motor Accident Fund, private health care and Severance Allowances can be accessed and may be exported.

5. rECoMMENDAtioNS

Since the problem of migrants, refugees and asylum seekers in Africa is far from over due to the “push” and “pull” factors, we should revisit our social security policies, social assistance and social insurance. The “push” factors in Africa include wars, economic mismanagement, dictatorship and political instability. These are issues that cause people to move across the continent such that they end up burdening the economy of the host country.

Therefore, there is a need to identify the gaps and shortcomings in this regard. The following are recommended:

Clearly, as there is no way Africa can satisfactorily address the “push factors”, a regional ��framework must be developed to ensure access to, portability of and inclusion of migrants and permanent residents in social security coverage of host countries. Swaziland for example has some permanent residents from Mozambique who have lived in the country for over 30 years. However, they cannot access some of the social assistance grants that other local vulnerable groups have access to.Swaziland should strive to enter into reciprocal agreements with other SADC ��member states with similar social security systems so that the workers can enjoy protection in another country and any period of membership of a fund or scheme in another country may be treated as a period of membership of either the Swaziland National Provident Fund or other schemes. Africa must learn to invest in its people; there must be a high degree of universality of benefits.Swaziland, having adopted the Code of Social Security in the SADC, must act now ��to close the social protection gap and devise policies and a framework that is friendly to refugees and migrants. This framework must be one that is geared to contribute towards poverty reduction.The country must prioritise formulation of social security legislation designed to ��protect individuals and families against income insecurity caused by contingencies such as unemployment, maternity, invalidity, old age and death. In this regard,


lobbying of Members of Parliament must be intensified in an endeavour to ensure that the Employment Bill, 2007, when it becomes an Act, has a full chapter on HIV/AIDS and the rights of the workers who are HIV-positive. It must also ensure the establishment of the Unemployment Benefit Fund that is expected to address issues of maternity, temporary unemployment and employer insolvencies.The country must take advantage of the colonial legislation,�� 19 and implement its provisions in the interest of its public servants.The state must undertake to implement the Constitutional provisions in Section ��60(5) regarding social security coverage.20

Without compromising the standard and quality of education in the country, the state ��must promote free and compulsory basic education for all as enshrined in Section 60(8) of the Constitution, beginning 2009.The state must be seen to be taking practical measures to ensure the provision of basic ��healthcare services to the population as per the Constitutional provision in Section 60.The state must take steps to protect vulnerable groups by guaranteeing basic economic ��and social conditions, in particular because of the increasing informal economy. As such, steps should be taken to extend social security to unorganised workers.The state must take steps not only to close the gap in the social security protection of ��domestic employees but also to close the social protection gap for non-citizens.As it is clear that migration has emerged as a central issue of our time and that SADC ��member states have no capacity to “turn down the tap” on migration; steps must therefore be taken to formulate regional frameworks that will facilitate bilateral and multilateral arrangements that emulate the Zambia/Malawi agreement. For now, it is clear that bilateral treaties are the only hope for portability of benefits. This of course is necessitated by the consideration of the migrant workers whose major interest is to obtain equal access coverage and entitlement to benefits to national workers exercising their social security rights acquired in different countries in the region.Workers, (including the members of the disciplined forces who have no rights to form ��a trade union) must be allowed the capacity to collectively bargain on issues of social security.While it is true that Swaziland is not in a position to offer universal social security like ��a Basic Income Grant, the state must take steps in that direction which are within its means.

19 Public Service Act 54 of 1968.20 S 60(5) of the Constitution of the Kingdom of Swaziland reads as follows: “The state shall make

reasonable provision for welfare and maintenance of the aged and shall protect the family and recognize the significant role of the family in society.”


BiBLioGrAphY

PublicationsSocial Security Administration (SSA)

“Swaziland” in Social Security Programmes Throughout the World (SSPTW): “Africa” (Social Security Administration 2009) 169.

LegislationConstitution of the Kingdom of Swaziland,

2006.Employment Act 5 of1980.Motor Vehicle Accidents Act 13 of 1991.Public Health Act 5 of 1969.Public Service Act 54 of 1968.Swaziland National Provident Fund Order 23 of

1974.Workmen’s Compensation Act 7 of 1983.

Internet SourcesSwaziland National Provident Fund (http://

www.snpf.co.sz/).

InterviewsBenefits Officer, PSPF, Mbabane.Claims Manager, MVA Fund, Mbabane.Dlamini, F. National HIV/Aids Co-ordinator,

NERCHA, Mbabane.Dlamini, M. Senior Lecturer, Rehabilitation

Studies, Mbabane.Dlamini, M.B. Principal Social Welfare Officer,

Social Welfare, Ministry of Health and Social Welfare, Mbabane.

Nkabinde, M.S. Benefits Director, SNPF, Manzini.

Sibandze, S. Health Planner, Ministry of Health and Social Welfare, Mbabane.

Zithulele, G. Senior Manager (Corporate), SNPF, Manzini.

119ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS iN tANZANiA

Chapter 5


thE portABiLitY of SoCiAL BENEfitS iN tANZANiA

Tulia ACKSON

1. MAtriCES ShoWiNG ACCESS to SoCiAL SECUritY iN tANZANiA

1.1 introduction

Access to social security in Tanzania is mainly confined to the formal sector which accounts for about 6% of the labour force thereby excluding over 90% of the workers. Along similar lines, citizens, permanent residents and refugees working in the formal sector are largely covered by social insurance schemes, while temporary residents, asylum seekers and undocumented migrants, are not. Their exclusion may partly be explained by the fact that they are concentrated in the informal sector which is generally excluded from the social security schemes covering the formal sector, but another setback is based on the fact that because of their status, they cannot access formal employment. However, as is evident from the matrices below, the civil service, as distinct from public service, does not employ non-Tanzanians irrespective of their status. Therefore, migrant workers, particularly permanent residents and refugees, have the same social security rights as those of Tanzanians except for the social security scheme covering civil servants. As for access to social assistance, except for a few categories of benefits, as shown below, it is not based on citizenship and so migrant workers in Tanzania are by and large covered by social assistance programmes.


1.2 Matrix A: Access to social services/social security


Social assistance







Citizens

Available to categorised groups and it is means-tested

Covered Covered Not available

Permanent residents

Available to categorised groups and it is means-tested

Covered Covered Not available


Not covered N/A N/A Not available

Refugees Limitedly covered

Limitedly Covered N/A Not available

Asylum seekers Limitedly covered N/A N/A Not available


Limitedly covered N/A N/A Not available

1.3 Matrix B: Access to social services/social security







Citizens Covered Limitedly covered Limitedly covered Covered

Permanent residents Covered Limitedly covered Limitedly

covered Covered

Temporary residents (including contract migrants) Covered Limitedly covered Limitedly

covered Covered

Refugees Covered Limitedly covered Limitedly covered Covered

Asylum seekers Covered N/A N/A N/A

Undocumented non-citizens Covered N/A N/A Covered


1.4 Matrix C: (Ex)portability of benefits










Citizens N/A N/A N/A N/A

Permanent residents N/A N/A N/A N/A


N/A N/A N/A N/A

Refugees N/A N/A N/A N/A


Undocumented non-citizens N/A N/A N/A N/A

2. oVErViEW of SoCiAL SErViCES/forMS of SoCiAL SECUritY

2.1 introduction

The previous section gave matrices of social assistance and social security benefits available in Tanzania. The availability of said benefits was analysed in terms of whether they are available to all the population living in Tanzania or whether it is categorised in terms of who is covered and entitled to the benefits. From the matrices, it is clear that by and large the immigrants living in Tanzania and Tanzania’s emigrants are not well protected when it comes to social assistance and social security provisioning in Tanzania. This section gives an overview of the availability of social assistance and social security benefits to people living in Tanzania.

2.2 Social assistance benefits

Social assistance in Tanzania is provided through social services. The services which have a social security aspect include education and health. At independence, these services were provided free of charge to the whole society. Since the late 1980s, the availability of these services has been based on the “cost sharing”


principle as a direct response to the conditions imposed by the IMF and the World Bank.1

However, there are social assistance programmes that take care of vulnerable groups, including women, children, orphans, the elderly, the youth and disabled people.2 The poor and vulnerable, though not adequately protected, are provided with shelter and other basic services by various organisations including the Msimbazi Centre, Save the Children NGO, CCBRT, Child in the Sun, BAKWATA, international and local donors, Help Age, AMREF and TRCS. The government, nonetheless, has not totally relinquished its role in protecting the vulnerable groups. The vulnerable groups who cannot make their way into the NGO shelters and provision of education are catered for under UMATI, which is a government-sponsored programme for social welfare, and TACAIDS which takes care of the people living with HIV/AIDS. Additionally, the recently established TASAF creates safety nets for the poorest people and also provides “work for income through community infrastructure.”3

The disabled groups are still largely excluded and their protection is not guaranteed. Disability protection is provided through employment and care and maintenance. As to employment, the Disabled Persons (Employment) Act of 1982 criminalises the act of an employer who denies or discontinues the employment of a disabled person.4 The Disabled Persons (Care and Maintenance) Act of 1982 provides for the establishment of the National Fund for Disabled Persons (hereafter referred to as NFDP).5 The functions of the NFDP, among others, include providing maintenance and establishing and maintaining settlements for the disabled.6 Section 14 of the Disabled Persons (Care and Maintenance) Act of 1982 imposes an obligation on the relative of the disabled person to take care of and maintain the disabled person according to his/her means. Considering the acute poverty of the majority of Tanzanians, this statutory obligation cannot be implemented in most families. It should be noted that, besides these laws, the NFDP is no longer in existence, at least in principle. This has made the disabled socially insecure and dependent on charitable organisations and individual good Samaritans.7

1 See Tungaraza, F.S.K. “Social Protection in SADC: Developing an Integrated and Inclusive Framework – the case of Tanzania” in Olivier and Kalula (eds.) Social Protection in SADC: Developing an Integrated and Inclusive Framework (2004) op cit, 178–197 at 186, where it is stated that many urban and rural poor and vulnerable groups are denied access to health services because they cannot afford to pay for those services.

2 See the Research and Analysis Working Group Poverty and Human Development Report 2003 (Mkuki na Nyota Publishers Ltd 2003) 75.

3 ibid 80.4 S 17 of Act 2 of 1982.5 S 18 of Act 3 of 1982.6 S 19 of Act 3 of 1982.7 The good Samaritans include Mr Reginald Mengi who occasionally provides help to the disabled,

mainly in Dar es Salaam. Those who are in rural areas still have no access to these provisions and NGOs are also concentrated in Dar es Salaam.


It can be said, therefore, that a new social assistance system needs to be established to reflect the current trends of globalisation and the liberalised market. The vulnerable in Tanzania are not, as such, protected from the social risks that they face. This state of affairs perpetuates the levels of poverty which are very high in Tanzania. It is on this premise that the argument is made that there is a need to adopt a comprehensive social security programme to capture the issues of poverty prevention, poverty alleviation, social compensation and income redistribution.8

2.3 National and occupational old age pension

Old age/retirement pensions in Tanzania are available through the statutory social security institutions like the National Social Security Fund (NSSF), Parastatal Pensions Fund (PPF), Local Authorities Provident Fund (LAPF), Government Employees Provident Fund (GEPF), Public Service Pensions Fund (PSPF) and the Political Service Retirement Benefits (PSRB).

Entitlement to an old age/retirement pension is based on a number of conditions which differ from one social security scheme to another. To begin with the NSSF, a member will only qualify for an old age pension when s/he attains the age of 60 and has contributed for 15 years.9 However, a member may be awarded a retirement pension before reaching the age of 60 provided that s/he has contributed for 15 years.10 An option for a member with less than 15 years contribution is to be awarded a retirement special lump sum regardless of age.11

Similarly, PPF offers retirement pensions under more or less the same conditions save the contributory time, which is at least 10 years before retirement.12 Where a member has less than 10 years’ contributions, s/he is awarded a gratuity benefit.13 Also, PSPF offers a retirement pension at the age of 55 or 60 provided that a member has contributed for an aggregate of 15 years.14

8 For a more detailed discussion on the links between poverty prevention, poverty alleviation, social compensation and income redistribution, see ILO Social Security: A New Consensus (ILO 2001) 1 and 94–97. See also Olivier, M.P. and Van Rensburg, L.J. “Perspectives on the Concept of Social Security” in Olivier et al (eds.) The Extension of Social Security Protection in South Africa: A Legal Inquiry (Siber Ink 2001) 22–28 at 25. See further Moore et al “The Concept of Social Security” in Olivier et al (eds.) Social Security Law, General Principles (Butterworths 1999) 7–19, 13.

9 S 23 of the National Social Security Fund Act 28 of 1997.10 S 27 of the National Social Security Fund Act 28 of 1997. 11 ibid s 26. 12 Ss 24 and 26 of the Parastatal Pensions Act 14 of 1978.13 ibid s 28. See also PPF Guide 19.14 Ss 6, 9, 17, 22(1) and 25 of the Political Service Retirement Benefits Act 3 of 1999.


PSRB offers retirement pensions for specified political leaders, namely the former president, vice-president, prime minister and the speaker of the National Assembly.15 Other political leaders are only entitled to a lump sum gratuity which is dependent on the number of years they have spent in service.16 Retirement Pensions under PSRB are based neither on age nor contributory time as they are non-contributory and political posts are not determined by age.17

GEPF and LAPF do not offer retirement pensions: They both offer lump sum payments. GEPF offers a retirement package when a member reaches a prescribed retirement age18 while LAPF pays a member in the event of retirement.19

2.4 Disability pension

Disability pensions, which are also known as invalidity pensions in Tanzania, are offered by almost all social security schemes in Tanzania including the NSSF, PPF, PSPF, PSRB, GEPF and LAPF. As for the NSSF, an invalidity pension is awarded under more or less similar conditions to those of retirement/old age benefits: a member must have contributed for not less than 15 years or have made at least 36 monthly contributions of which 12 months’ contributions or more must have been made immediately preceding the date of incapacity;20 the said member must be suffering from a permanent invalidity21 and must be under the pensionable age. When a member of NSSF does not satisfy the stated conditions, s/he is awarded a special lump sum.22 Further, invalidity benefits are awarded only when the medical board determines that the member is suffering from a permanent invalidity.23

The PPF bases its disability benefits on mainly two conditions: that it has to be medically proven to the satisfaction of the employer that the employee can no longer discharge his/her duties24 and that the member must have made at least 120 monthly contributions to

15 Parts III, IV and V of the Political Service Retirement Benefits Act 3 of 1999.16 ibid Parts IV, V and VI.17 Every person who has reached the age of majority, 18 years, can become a political leader except for

the president and vice-president of the United Republic of Tanzania (URT) who must have attained the age of 40 years before nomination to contest for the political seats. See Articles 39(1)(b) and 47(4)(b) respectively of the URT Constitution of 1977.

18 S 16(c)(iv) of the Revised Laws of Tanganyika, Cap 51. 19 S 27 of Act 6 of 2000. 20 S 28 of Act 28 of 1997. 21 S 28(2) of Act 28 of 1997 defines permanent invalidity as “permanent loss of two thirds or more of

the earning capacity because of physical or mental invalidity”.22 S 31 of Act 28 of 1997.23 ibid s 32.24 S 26(b) of Act 14 of 1978.


PPF.25 When the above-mentioned conditions are not met, a disabled member is awarded a gratuity.

Like its counterparts, PSPF offers an invalidity pension to its members who are “unemployable” due to physical or mental disability.26 As with PPF, the employer must be satisfied by the medical evidence that the employee can no longer perform his/her duties due to infirmity.27 It is noteworthy that the invalidity pension awarded by PSPF is not based on any of the conditions used by PPF and NSSF like contributions made or permanency of incapacity. The invalidity pension under PSPF is open to all members provided a member is unemployable.

The Political Service Retirement Benefits Act of 1999 does not explicitly provide for invalidity or disability benefits although one may be able to infer the provision of the benefits under Section 5(d). The section provides that a political leader shall be entitled to the benefits stipulated in the Act upon medical evidence that s/he is incapable of discharging his/her official duties. Even with said inference, it is only the former president, vice-president, prime minister and the speaker of the National Assembly who would be entitled to a disability pension. A gratuity is payable to other political leaders.28

Lastly, invalidity benefits are also awarded by the LAPF, GEPF and under the Workmen’s Compensation Ordinance of 1949 where termination of employment is on medical grounds.29 The invalidity benefits offered by said schemes are a once-off payment as opposed to lifetime invalidity pensions offered by other schemes.

2.5 health care (including health insurance)

Health insurance in Tanzania is more or less a new phenomenon since it was resurrected in 1991 after being abolished together with private hospitals in 1977 when the country was implementing the socialist policies.30 Currently there are many private hospitals and a growing number of health insurance companies, the latter being dominated by and large by the foreign companies like Strategies, AAR, Prosperity Health and Momentum. Most of the health insurance companies attract corporate clients and the affluent few because of the high premiums which an ordinary Tanzanian cannot afford.31

25 See PPF Guide 15.26 S 13 of Act 2 of 1999. 27 ibid s 16(e).28 This argument is based on the fact that the president, vice-president, prime minister and speaker under

Act 3 of 1999 (ss 9(1)(a), 12(1)(a), 14(1)(a) and 18(b) respectively) are entitled to retirement pensions while other political leaders are granted gratuity payments; see Ss 16(1), 20(1) and 21(1) of Act 3 of 1999.

29 S 27(c) of Act 6 of 2000, s 16(c)(i) of Revised Laws of Tanganyika, Cap 51 and Cap 263. 30 Private Hospitals Regulation Amendment Act 26 of 1991 and Private Hospitals Regulation Act of 1977.31 For more details see Ackson, T. Social Security Law and Policy Reform in Tanzania: Reflections from the

South African Experience (2007 PhD thesis, University of Cape Town) 99-100.


Apart from the mushrooming private hospitals and health insurance, the majority of Tanzanians, especially in the countryside, are dependent on the public healthcare system. The public health care is primarily subsidised by the government; all members of the public are only supposed to contribute a particular percentage to get the medical services. However, as Tungaraza noted in 2004, “[u]sers are more likely to report dissatisfaction with government providers than with private ones [because of] long waiting times [and] lack of drugs”.32 This is the position even today: most of the public hospitals and healthcare facilities are not satisfactorily serving the people, there are even cases where people have died waiting for the services at the hospital and women giving birth while in the long queue.33

Nevertheless, one cannot ignore the fact that public healthcare facilities are the ones which are spread all over the country and they serve a great deal of the Tanzanians while the private hospitals are concentrated in major cities and towns where people can afford to pay for the services they receive. As such, the public healthcare system is the most commonly used in Tanzania.

2.6 Sickness benefits

Sickness benefits are offered only by the PSPF and NSSF. Under PSPF, members are entitled to receive sickness benefits when they are unable to work and earn their monthly salaries. Sickness benefits are based on the conditions that a member must be medically unable to perform his/her duties and that the incapacity should have lasted for at least six months before lodging the application for the benefits.34

2.7 public housing

In Tanzania public housing is not guaranteed to any person although there are houses which belong to the government and host different categories of people. In essence, any person may be hosted in these houses on the condition of payment of the specified rent. As such, public housing is open to any person who applies depending on the availability of the vacancies. However, it is somewhat difficult to realistically state that the houses are truly available to the general public since those who occupy those houses tend to stay for a very long time and also, one can safely say, are on “tenancy for life”.

32 Tungaraza, F.S.K. “Social Protection in SADC: Developing an Integrated and Inclusive Framework – the case of Tanzania” in Olivier, M.P. and Kalula, E.R. (eds.) Social Protection in SADC: Developing an Integrated and Inclusive Framework (CICLASS, RAU, and Institute of Development and Labour Law, UCT 2004) 178-197 at 194.

33 The Mara Case and Mwananyamala incidences as examples.34 S 12(1) of Act 2 of 1999.


2.8 Schooling/education

Tanzania embraces a policy of universal primary education for all. Under this motto, all children in Tanzania at the age of 7 have to be registered for their primary education. Primary education is by and large free but in reality parents are asked to contribute towards school development projects like building classrooms, buying desks and school equipments for their children. When it comes to registration of students for enrolment, it is all children without any distinction whatsoever.

3. ACCESS to SoCiAL SErViCES/forMS of SoCiAL SECUritY for CitiZENS AND CAtEGoriES of NoN-CitiZENS

3.1 introduction

In the previous section was the general overview of the available social security benefits, social assistance and access to social services. This section discusses access to social assistance, social services and social security in place by various groups of people making up the Tanzanian community including citizens, permanent residents, temporary residents, refugees, asylum seekers and un-documented migrants.

3.2 Access to social security in tanzania

There are a number of conditions attached to the availability of and entitlement to social protection measures in Tanzania. The laws that establish the existing social security institutions, as a rule, prescribe the personal scope of coverage and the material scope of coverage. As such, the categories of people and the benefits to which they would be entitled are well defined and the conditions for entitlement are laid down. This part seeks to elucidate the personal scope of coverage by different social protection institutions in Tanzania.

3.2.1 Citizens

Social protection measures that are in place in Tanzania are not dependent on citizenship status and the laws are not straightforward on whether the social services, social assistance and social security institutions cover only the Tanzanians or other categories of residents as well. As is evident from the paragraphs below, it is only the Public Service Pensions Scheme which covers only citizens since the civil service does not employ non-Tanzanians on permanent terms. Even then, it is not every Tanzanian who can benefit from the social protection measure in place since there are conditions to be met before one is entitled to any benefits under a particular scheme.35 It is therefore prudent to discuss the groups of people covered by each of the schemes.

35 See section 2 of this chapter.


The Public Service Retirement Pensions Act of 199736 provides that members of PSPF can only be pensionable employees in the central government or those employed in the executive agencies.37 This means that non-pensionable employees in the central government like those employed on operational terms are not covered.

Those excluded by the PSPF are covered under the Provident Fund (Government Employees) Act of 194238 which specifically covers non-pensionable employees of the central government who are not covered by any other government pensionable social security schemes.39 These categories include employees in the prisons, the police, operational employees who are categorised as such by the central government, those working on specific projects and those on contracts who are either under the government or from private undertakings.40 However, when those working in the prisons and the police complete their contractual period they automatically become members of PSPF.

The National Social Security Fund Act of 199741 provides for coverage of employees in the private sector such as private companies, non-governmental organisations, embassies employing Tanzanians, international organisations and organised groups in the informal sector. Another category covered by the NSSF is employees in government ministries, departments and parastatals who are classified as non-pensionable employees. NSSF also covers ministers of religion, the self-employed or any other employed person not covered by any other scheme and any groups declared as members by the minister responsible for labour matters.42

The Parastatal Pensions Act of 197843 covers employees in all parastatal organisations and public institutions, all private companies in which the government owns shares, private companies that are not covered by any other social security fund and all parastatal organisations that have been restructured through privatisation, sale or liquidation.44 Non-pensionable employees in parastatal organisations and the informal sector are also

36 Act 2 of 1999.37 ibid ss 2 and 5.38 Revised Laws of Tanganyika, Cap 51.39 ibid s 4. See also s 3 of the Provident Fund (Government Employees) Ordinance (Amendment) Act 52 of

1965.40 Baruti EEM The Coverage Gap: Extension of Social Security Coverage to the Informal Sector Employees in

Tanzania, paper presented at the 5th International Research Conference on Social Security (theme: Social security and the labour market: A mismatch?) Warsaw, 5-7 March 2007 5.

41 Act 28 of 1997.42 ibid ss 2, 6 and 7. See also NSSF The NSSF Profile: Coverage, Benefits payable and Qualifying

Conditions, Dar es Salaam: Benefit Administration Department, NSSF Head Office 2 and NSSF A Guide to the NSSF (NSSF 2004).

43 Act 14 of 1978.44 PPF, PPF Guide 8.


members of the PPF.45 It is noteworthy that the last category of employees is also covered by the NSSF.

Also, the Local Authorities Provident Fund Act of 200046 covers employees in local government authorities, the Local Government Loans Board, the Local Authorities Provident Fund, any institution owned by a local government authority and any institution which elects to contribute to the LAPF.47 It is noteworthy that the LAPF covers temporary employees as well.48

In terms of health and medical care, the National Health Insurance Fund Act of 199949 covers civil servants, employees in executive agencies and government parastatals.50 The NHIF excludes employees in local government, defence, police, prisons and those covered by NSSF.51 Similarly the Community Health Fund Act of 200152 covers all households in Tanzania through the establishment of Community Health Funds by local government authorities.53

Politicians are covered by the Political Service Retirement Benefits Act of 1999,54 the categories being the president, vice-president, prime minister, ministers, deputy ministers, speaker of the national assembly, deputy speaker, members of parliament and regional and district commissioners.55 Since non-Tanzanians cannot hold political posts, irrespective of their status, migrant workers cannot be covered by this scheme.

Lastly, the Workmen’s Compensation Ordinance of 1949 covers specified workers who work “under a contract of service or apprenticeship with an employer, whether by way of manual labour or otherwise”56 who sustain injuries in the workplace. This compensation scheme excludes those not employed as manual labourers, those who are covered by other compensation schemes, casual employees, out- workers, tributers, members of employees’ families and any other class of persons that the president may declare to be excluded.57

45 S 5 of Act 14 of 1978, as amended by s 4 of the Parastatal Pensions (Amendment) Act 25 of 2001.46 Act 6 of 2000.47 ibid s 6.48 ibid s 3.49 Act 8 of 1999.50 ibid s 2 and 14.51 ibid s 2.52 Act 1 of 2001.53 ibid ss 2 and 7.54 Act 3 of 1999.55 ibid s 4.56 S 2(1) of Cap 263 of 1949.57 ibid ss 2(1)(a)-(f), as amended by Workmen’s Compensation (Amendment) Act 17 of 1983.



With the exception of the Public Service Retirement Pensions Act of 1997 which covers only citizens as the only category who can be employed by the central government on pensionable terms, other social security institutions covering employees in the private sector embrace the permanent residents.58 For instance, NSSF and PPF all cover permanent residents by virtue of the fact that they cover, among other groups, employees in the private sector as indicated in section 3.2.1 above. Since permanent residents are usually employed in the private sector, they are also covered by NSSF and PPF. In the case of CHF, there are no conditions attached to membership except for the contributions which have to be made. This being the case, the permanent residents, being part of the local communities in their respective areas, are allowed to join the schemes.


Temporary residents, who by and large would be working as temporary employees, are covered only by PPF through its deposit insurance scheme, under which they are entitled to a lump sum when their account has to be closed. Notably NSSF excludes temporary employees.59 Further, temporary residents who might be employed by the central government on contractual or operational terms would be covered by GEPF. In this case, one can safely say temporary residents are only covered by PPF and GEPF.

3.2.4 Refugees and asylum seekers

As a general rule, refugees are allowed to work in Tanzania by virtue of Section 32 of the Refugees Act of 199860 which provides for employability of a refugee on the basis of his/her qualifications. It would seem, therefore, that refugees are also covered by the existing schemes which cover employees and workers in the private sector like NSSF and PPF.

As for asylum seekers, they are not entitled to coverage by the social security institutions covering refugees. This is because asylum seekers who qualify to be given refugee status would be covered as refugees and those whose applications are rejected are repatriated. As such, there is no social security scheme covering asylum seekers since they cannot be employed for lack of proper documents and thus cannot access social security institutions. However, they may be entitled to limited social assistance in terms of health care while their applications are pending provided they are pregnant, under 5 years or over 60 years old, which is the case for Tanzanians as well. This argument is partly based on the fact that public health care has no mechanisms for knowing who is who: there are no national identification cards and health workers attend to anybody who fits within said limitations.

58 S 16 of the Immigration Act 7 of 1995 provides that foreign nationals may be employed in Tanzania.59 S 8 of Act 28 of 1997.60 Act 9 of 1998.


3.2.5 Undocumented migrants

Undocumented migrants are by and large excluded from the ambit of the social security institutions since they cannot be employed as they will not have the proper documents. However, they are more likely to get healthcare assistance like the refugees and asylum seekers provided they are pregnant, under 5 years or over 60 years old.

4. portABiLitY of SoCiAL SECUritY BENEfitS for NoN-CitiZENS froM tANZANiA

4.1 introduction

Portability has been defined by Cruz as the “ability of workers to preserve, maintain and transfer acquired social security rights towards the accumulation of the value of pension benefits when changing jobs, without bias to nationality, country of residence or sectoral affiliation.”61 While this definition embraces in-country and cross-border portability of benefits, this section only discusses portability of social security benefits across the border, i.e. between different countries, in this case, between Tanzania and other countries in the Southern African Development Community.

4.2 Exportation of benefits abroad

Exportability of social security benefits is founded on the principle that “where the employee has contributed to a foreign country, the benefits should be sent to wherever the person would be at the time when the social security benefits become due.”62 Generally, there is no exportability of benefits from Tanzania to other countries within the SADC countries, or any other country for that matter. Nevertheless, Tanzania is obliged to preserve, maintain and transfer the acquired social security rights of migrant workers working in Tanzania particularly those from SADC countries. Tanzania’s responsibility lies in the fact that she has to honour the objectives enshrined in the SADC Treaty of 1992 and its protocols and other legal instruments.

The Treaty objective most relevant to this discussion is the one that requires the SADC states to endeavour to “achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the people of Southern Africa and support

61 Cruz, A.T. Portability of benefit rights: Portability of benefit rights in response to external and internal labour mobility: The Philippine experience, International Social Security Association, Thirteenth Regional Conference for Asia and the Pacific, Kuwait, 8 – 10 March 2004 1.

62 Ackson op cit 72. See also Holzmann, R., Koettl, J. and Chernetsky, T. Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices, Social Protection Discussion Paper Series No. 0519, Social Protection Unit, Human Development Network, World Bank, Washington, D.C., May 2005, 4. Available at http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/0519.pdf, accessed on 24 March 2006.


the socially disadvantaged through regional integration.”63 However, poverty alleviation and enhancement of SADC people’s standards and quality of life cannot be achieved if portability is not guaranteed.

Nevertheless, Tanzania has not been able to conclude any bilateral or multi-lateral agreements in relation to portability of social security benefits; this means that migrant workers in Tanzania are left in a precarious condition and upon return to their home countries they are only entitled to lump sum payments. The returning Tanzanians face a similar situation with the effect that lack of portability measures promotes individual poverty instead of alleviating it.

4.3 Conclusion

There are no portability measures in place in Tanzania. This is and has been a big challenge to which social security institutions in Tanzania have to give attention. With the growing regional and international migration, the Tanzanians working outside the country and the migrants working in Tanzania face the risks of losing their period of insurance and the social security benefits that they would otherwise be entitled to had there been portability measures in place. Said risks underscore the importance of Tanzania, as part of the SADC region and the international community, developing initiatives to ensure that migrants’ rights relating to social security are not jeopardised.

5. CoNCLUSioNS, With rEfErENCE to: (i) MAiN proBLEMS, GApS AND ShortCoMiNGS; (ii) rECoMMENDAtioNS AND prioritiES

5.1 introduction

This chapter explored the legal provisions and the actual practice relating to firstly non-citizens’ access to social security benefits like old age pensions, invalidity pensions, survivors’ pensions, medical care, education and housing. Secondly, it looked at the question of whether non-citizens’ social security benefits like old age pensions, invalidity pensions, survivors’ pensions and healthcare insurance can be exported from and to Tanzania. This section gives an account of the discussion expounded in the previous parts, it summarises the major findings of this research and also advises on what can be done in order to iron out the existing legal discrepancies and the practice affecting the migrant workers in Tanzania. The conclusion is organised in terms of coverage of the non-citizens by the social security institutions, access to social security benefits and portability of their acquired benefits.

63 Article 5(1)(a) of the SADC Treaty of 1992.


5.2 Conclusion

The legal framework in Tanzania by and large accommodates non-citizens in social protection matters including coverage in the existing social security institutions for the formal sector employees, education, public housing and health care. It is evident from the findings of this study that permanent residents, temporary residents, refugees, asylum seekers and undocumented migrants have access to social services and social security in Tanzania, albeit limitedly, as indicated in the matrices. However, it should be noted that while access to social services like education and health care for the mentioned groups is more or less similar to what the citizens are entitled to, the permanent residents and refugees are more advantaged since they are entitled to work permits and can therefore access the formal social security institutions like citizens.

It is clear from the discussion in the previous parts that fragmentation adversely affects the Tanzanian social security system and the impact is felt by both the citizens and non-citizens alike. When a non-citizen changes a job from one employer to another, the employers might be under different social security institutions and s/he will lose his/her benefits and periods of insurance accumulated under a previous scheme. This is based on the fact that there is no transferability of social security benefits and periods of insurance in Tanzania. The precarious position of the non-citizen is the same as that of a citizen. As such, the citizens and non-citizens are affected by the fragmented social security system in Tanzania on an equal basis.

The effects of fragmentation on a non-citizen are even worse when s/he has to emigrate from Tanzania to another country: all the accumulated benefits and periods of insurance are lost, except for a lump sum payment to which s/he might be entitled under some schemes like NSSF and PPF. Thus, there is a lack of portability measures, both legal and practical. As such, the non-citizens are adversely affected by the inability of Tanzania to enter into either bilateral or multilateral agreements to protect social security rights acquired in Tanzania for migrant workers or elsewhere for returning Tanzanians.

5.3 recommendations

Since the only social services readily accessible to all categories of non-citizens are education and health care, it is proposed that the government of Tanzania should prioritise coverage of the informal sector in the social security realm. Why? Because apart from the permanent residents and refugees, other categories of non-citizens are concentrated in the informal sector and have no access to the existing social security institutions which cover the employees in the formal sector.

In line with the first suggestion, it is recommended that Tanzania should endeavour to embrace the informal sector in the realm of social security provisioning because it is the sector which employs more than 90% of the total labour force, migrant workers inclusive.


Thus, instead of concentrating all the efforts on a small workforce in the formal sector, attention should be paid to the “larger” workforce, the informal sector workers.

Further, having noted that there are no in-country or cross-border portability measures, it is recommended that there should be unilateral efforts in Tanzania so that workers are not disadvantaged when they move from one job to the other, from public to private sectors or vice versa. Similarly, it is suggested that SADC should endeavour to establish portability measures so that migrant workers do not lose their social security rights when they cross borders within the SADC region.

As it is, access to social security in Tanzania is not directly based on nationality but largely on whether or not the sector in which a citizen or migrant worker works is covered by the existing social security schemes. As for access to social services, particularly education and health, there is no distinction on the basis of nationality.

BiBLioGrAphY

Publications

Ackson, T. Social Security Law and Policy Reform in Tanzania: Reflections from the South African Experience PhD thesis (University of Cape Town 2007).

Baruti, E.E.M. The Coverage Gap: Extension of Social Security Coverage to the Informal Sector Employees in Tanzania Paper presented at the 5th International Research Conference on Social Security (theme: Social security and the labour market: A mismatch?), Warsaw, 5–7 March 2007.

Cruz, A.T. Portability of benefit rights: Portability of benefit rights in response to external and internal labour mobility: The Philippine experience, International Social Security Association, Thirteenth Regional Conference for Asia and the Pacific, Kuwait, 8–10 March 2004.

Holzmann, R., Koettl, J. and Chernetsky, T. Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices, Social Protection Discussion Paper Series No. 0519 (Social Protection Unit, Human Development Network, World Bank 2005).

International Labour Organisation Social Security: A New Consensus (ILO 2001).

National Social Security Fund Guide to the NSSF .

National Social Security Fund The NSSF Profile: Coverage, Benefits payable and Qualifying Conditions, Dar es Salaam: Benefit Administration Department, NSSF Head Office accessed at http://www.nssf.or.tz/profile.php .

Olivier, M.P. and Kalula, E.R. (eds.), Social Protection in SADC: Developing an Integrated and Inclusive Framework (CICLASS, RAU and Institute of Development and Labour Law, UCT 2004).

Olivier, M.P. et al (eds.) The Extension of Social Security Protection in South Africa, A Legal Inquiry (Siber Ink 2001).

Olivier MP, Okpaluba MC, Smit N and Thompson M (eds.) Social Security Law: General Principles (Butterworths 1998).

Parastatal Pension Fund PPF Guide.Research and Analysis Working Group Poverty

and Human Development Report 20032003 (Mkuki na Nyota Publishers Ltd 2003).


Legislation

Revised Laws of Tanganyika, Cap 263.Revised Laws of Tanganyika, Cap 51.Community Health Fund Act 1 of 2001.Disabled Persons (Care and Maintenance) Act 3

of 1982.Disabled Persons (Employment) Act 2 of 1982.Immigration Act 7 of 1995. Local Authorities Provident Fund Act 6 of 2000.National Health Insurance Fund Act 8 of 1999.National Social Security Fund Act 28 of 1997.Parastatal Pensions (Amendment) Act 25 of

2001. Parastatal Pensions Act 14 of 1978.Political Service Retirement Benefits Act 3 of

1999.Private Hospitals Regulation Act of 1977.

Private Hospitals Regulation Amendment Act of 1991.

Provident Fund (Government Employees) Act of 1942.

Public Service Retirement Pensions Act of 1997.Refugees Act 9 of 1998.Treaty and Declaration of SADC of 1992.Workmen’s Compensation (Amendment) Act 17

of 1983. Workmen’s Compensation Ordinance Cap 263 of

1949.

Internet Sources

http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/0519.pdf.

137Citizenship, human rights, empowerment and inClusion, and the impliCations

for soCial proteCtion and soCial seCurity harmonisation/Coordination poliCies in sadC

Chapter 6

Citizenship, human rights, empowerment and inClusion,

and the impliCations for soCial proteCtion and soCial

seCurity harmonisation/Coordination

poliCies in sadC

Ingrid Palmary & loren B. landau

1. introduCtion

This chapter reviews the usefulness of the concept of social protection for migrants living in South Africa. Based on reviews of existing Forced Migration Studies Programme (FMSP) datasets we argue that the concept falls short for migrants in several significant ways. Firstly, the emphasis on public protection as a central to social protection largely excludes migrants who do not access public protection. Secondly, migrants are excluded from most social protection because of their reliance on the informal sector and most importantly their lack of access to the documents required to access public benefits. Whilst many very progressive policies exist to protect documented migrants in South Africa, by far the majority of migrants do not have documents and are unlikely to ever get them. As a result their access to social protection in terms of its traditional definition is almost non-existent.

This is not to suggest that migrants are faring very badly in South Africa. Rather there appear to be different kinds of migration streams each with their own risks and vulnerabilities – and understanding these is central to supporting the social protection of migrants. For example, many inner city residents of Johannesburg are cross border, urban migrants. They fare fairly well in terms of their health status,1 their income levels, their education levels and their ability to remit money home. However, internal South African migrants often live in the informal settlements surrounding Johannesburg and have very limited access to these services. They tend to be poorer than their cross border migrant

1 Mathee, A. et al The health environment and development study report (Medical Research Council 2006).


different vulnerabilities facing migrants it is clear that cross border migrants face greater threats to their physical safety than South Africans or South African internal migrants.

Section 1 of this chapter begins by introducing the concept of social protection and reflects on its development and the implications of this for migrants living in South Africa. Central to this is an assessment of the kinds of vulnerability that we typically focus on when assessing access to social protection and to what extent these are the vulnerabilities that migrants are likely to face. We then go on to review the debates within the literature on social protection over how broad the concept should be, whom it should apply to and the extent to which it is possible to support informal systems of social protection such as the transformation of unequal gender relations. The second section of the chapter reviews the existing evidence on migrants in the greater Johannesburg area and their access to social protection, their vulnerabilities and their resilience. Finally, section 3 some conclusions are drawn for both the conceptualisation of social protection as well as the provision of social protection to migrants in South Africa specifically.

The chapter draws on a number of sources of survey data collected by FMSP over the past five years as detailed in table 1 below:

Table 1

Source Sample size Geographical coverage Sample Dates

Census 2001 All in South Africa National NA

RenewalRandom household survey

Informal settlement outside Johannesburg (Sol Plaatjies) and inner city Johannesburg

N=487 2008

African Cities survey

Random household survey (panel study)

Inner city Johannesburg N=847 2006-

2008

UNOCHA vulnerability survey

Random household survey

Alexandra township (mixed informal and government subsidised housing) and inner city

N=2028 2008

Unaccompanied minors survey

Convenience sampled individual survey

Border areas of Musina and Komatipoort

N=215 2007

In addition, qualitative interviews with 45 Malawians living in Johannesburg were conducted to provide further insights into this often-neglected group of migrants. A brief report on this supplementary study is found in Appendix 1.

139CitiZENShip, hUMAN riGhtS, EMpoWErMENt AND iNCLUSioN, AND thE iMpLiCAtioNS

for SoCiAL protECtioN AND SoCiAL SECUritY hArMoNiSAtioN/CoorDiNAtioN poLiCiES iN SADC

2. CoNCEptUALiSiNG SoCiAL protECtioN

2.1 Background

Social protection has been defined in various ways. The definitions draw largely on the debates throughout the 1980s about social security and the role of ‘safety nets’ and, as discussed later in the chapter, have evolved, and indeed gained greater interest, in recent years. Sabates-Wheeler and Waite2 compares the different definitions of social protection that some of the key organisations are working with:

International Labour organisation

Definition: The provision of benefits to households and individuals through ��public or collective arrangements to protect against low or declining living standardsConceptual emphasis mainly in terms of insurance and extension of provision ��to those in the informal sector.

World Bank

Definition: Public measures intended to assist individuals, households and ��communities in managing income risks in order to reduce vulnerability and downward fluctuations in incomes, improve consumption smoothing and enhancing equity.Conceptual emphasis on risk management which frames social protection as ��both safety net, and spring board through human capital development.

International American Development Bank

Definition: Social protection refers to the set of public policies directed towards ��lessening the impact of adverse shocks on consumption over timeConceptual emphasis: People are vulnerable to risk without social protection; ��deleterious effect of the lack of social protection on human and physical capital.

overseas Development Institute

Definition: Social protection refers to the public actions taken in response ��to levels of vulnerability, risk and deprivation which are deemed socially unacceptable within a given polity or society.Conceptual emphasis: contextually specific understanding of vulnerability and ��deprivation. Social protection is targeted at the poorest and most vulnerable.

Source: Sabates-Wheeler and Waite (2003) 5.

2 Sabates-Wheeler, R. and Waite, M. Migration and social protection: A concept paper (Institute of Development Studies, Sussex, 2003).


As part of their effort to ensure that macro-economic reforms and investments do not leave the poor behind, the World Bank has driven many of the discussions of both the nature and possible benefits of social protection. Their most recent definition of social protection is: “public policies that assist individuals, households, and communities in better managing risks and that support the critically vulnerable.”3 As such, social protection typically includes social legislation that provides a legal framework for minimum civic standards, social insurance and cash and other kinds of transfers to the poor (such as food) (see Rook and Freeland, undated). What is clear from these definitions is that all agencies to some extent emphasise that social protection consists of public interventions and that the emphasis of different organisations has differed according to their mandate. This excludes some of the more informal mechanisms that people might use to manage risk.

Examples, from the activities of the World Bank and the ILO respectively give an illustration of how social protection has been implemented under different contexts by different agencies:

The World Bank in a 2009 document summarizing the lessons learned from social protection implementation over the past decade or so argue for a three pronged approach, including:

Improved earnings and quality jobs:�� Here the kinds of interventions they have promoted include lending focused on micro-enterprises, and training programmes to improve workers skills and therefore access to quality jobs;Increasing security and managing risks:�� Risk and vulnerability assessments have been the key technique for assessing country strategies for social protection. The central lesson identified by the World Bank has been how important shocks are (natural disasters, HIV etc) for understanding poverty. To respond to these shocks, the bank has developed tools for evaluating pension investments and unemployment insurance and other savings or investments that might offset such shocks;Improve equity and reduce extreme poverty through programmes for the vulnerable:�� this speaks to the Bank’s emphasis on the importance of safety nets and, in particular, for conditional cash transfers to the very poor and chronically poor. These cash transfers are sometimes conditional (or based on means testing) and the value and basis of these conditions has been strongly debated in the literature.4 The conditions attached to a cash transfer, for example, might be that children of the recipient family attend school or receive minimum medical care. Evaluations of these interventions show

3 Holzmann, R. Social protection and labor at the World Bank, 2000-2008 (World Bank 2009) 2.4 See Moser, C. “Insecurity and social protection: has the World Bank got it right?” (2001) Journal of

International Development 361-368; Kabeer, N. “Safety nets and opportunity ladders: addressing vulnerability and enhancing productivity in South Asia” (2002) 20(5) Development Policy Review 589-614; Guhan, S. “Social security options for developing countries” (1994) 133(1) International Labour Review 35-53; and Adato, M. and Bassett, L. What is the potential of cash transfers to strengthen families affected by HIV and AIDS? A review of the evidence on impacts and key policy debates Johannesburg: Joint learning initiative on children and (HIV/AIDS/International Food Policy Research Institute 2008).



effects commensurate with the size of the transfer on a number of indicators including, health education and school attendance.5 Such social funds are increasingly popular in Southern and East Africa6 and are being rolled out beyond the pilot phase in several countries.

For the World Bank, country based poverty reduction strategy papers are the basis for establishing poverty reduction priorities and developing the Bank’s Country Assistance Strategies (CAS) which outline a country’s priorities and the areas of Bank support for these. Social protection has been increasingly a focus and is now part of 92% of the CAS.7 According to the Bank, risk and vulnerability assessments showed that 621 million USD was spent on social funds, 433 million USD on safety nets, 56 million USD on pensions, 440 million USD on labour markets across sub-Saharan Africa between 2002 and 2007. This indicates increasing spending by the Bank to support social protection mechanisms.

The ILO has also been at the forefront of developing social protection mechanisms. As one would expect given its mandate, the ILO has focused more on protection linked to income generation. To some extent, this limits its relevance for countries with high levels of unemployment, a limitation that the ILO has recognised.8 With time however, the ILO has moved away from notions of social protection based on defending the rights of certain categories of workers and has moved towards a ‘decent work for all’ campaign.9 A number of authors and organisations have welcomed this shift toward a more inclusionary definition and scope of work.10

2.2 introducing vulnerability

As mentioned, being able to offer social protection to the chronically poor depends on being able to assess their vulnerability to poverty. Although most agree that social protection should be oriented towards the vulnerable, vulnerability itself is a highly contested term with writing from a variety of sources debates its meaning. The first point emphasised by several organisations, including the World Bank and International Food Policy Research Institute, is that poverty is dynamic and is the outcome of a range of dynamic processes and events.11 This approach argues that people move in and out of poverty and therefore static notions of poverty such as the. $1 per day measurement

5 See Holzmann, R. Social protection and labor at the World Bank (2000-2008, 2009).6 See Adato, M. and Bassett, L. What is the potential of cash transfers to strengthen families affected by

HIV and AIDS? A review of the evidence on impacts and key policy debates (International Food Policy Research Institute, 2008).

7 Holzmannn, R. Social protection and labor at the World Bank (2000-2008, 2009).8 See Piron, L. Rights-based approaches to social protection (Report commissioned by DFID 2004).9 ILO, 1999 cited in Piron ibid.10 See Sen, A. “Work and rights” (2000) 139(2) International Labour Review 119 and Piron ibid .11 See Holzmann, R. Social protection and labor at the World Bank (2000-2008, 2009); Rook, J. and

Freeland, N. What are social transfers? Regional hunger and vulnerability programme (undated).


largely fails to capture the dynamic nature of poverty. Rather, Holzmann12 argues we should focus on risks, shocks and vulnerability to, for example, poverty or food insecurity. From this perspective, risk management is the key to: (a) preventing shocks through, for example, good macroeconomic policy and functional healthcare systems; and (b) recovering from shocks through, for example, having invested in savings groups, weather resistance crops, and other mechanisms.

Linked to the focus on risks, shocks and vulnerability is the need to understand people’s responses to them. Thus, there has been a focus on how people recover from shocks with recovering referring to actions taken before the shock happens that mitigate its effects. Equally important, but in contrast to recovering, coping strategies refer to what families do after the shock has occurred to mitigate its effects. This might include selling assets, working longer hours, borrowing from friends etc. These coping strategies may be informal (such as relying on loans from community organisations, friends etc), or they may be market based (including borrowing from banks etc) or they may be public (including relying on social insurance for illness or death etc). Public options, particularly in developing countries are usually linked to formal employment and are therefore seldom available to the very poor as will be discussed in section 4 of this chapter.13 However, considering social protection in terms of recovering and coping highlights the need to differentiate chronic and time bound poverty and responses to it. As a result, some authors14 argue for considering time spent under the poverty line rather than a cross sectional analysis of poverty per se. Others have argued for the need to consider risk and non-risk poverty where the former is a result of a risk related to structural factors and the latter is due to lifecycle events such as divorce.15 Drawing from these debates and reconceptualisations of vulnerability, social risk management has become a central strategy of many organisations and this refers to how a society or family manages its risk and the combination of strategies it employs.16

The second lesson to draw from these debates therefore is that vulnerability is a forward-looking concept. Most importantly, it aims to identify future risks, it emphasises understanding a families profile and therefore likelihood of risks.17 For it to serve this function, however, information is needed about all three of the key parts of vulnerability

12 Holzmann ibid.13 Alwang has a slightly different conceptualization, using the terms ex ante and ex post risk reduction

(before or after the event has occurred) and risk mitigation14 Such as Ravallion, M. “Expected poverty under risk induced welfare variability” (1998) Economic

Journal, March 1173-1183.15 Alwang, J., Siegel, P. and Jorgensen, S. Vulnerability: A view from different disciplines (World Bank

social protection discussion series 2001).16 See Holzmann ibid and Jørgensen, S.L. and Van Domelen, J. Helping the Poor Manage Risk Better: The

Role of Social Funds The World Bank, December 1999.17 Alwang ibid and Tandon, A. and Hasan, R. Conceptualising and measuring poverty as vulnerability: Does it

make a difference? (Asian Development Bank 2005).



1) the risky event, 2) the household’s ability to manage risks and 3) the outcome or resulting welfare loss. Indeed, it is often the absence of this level of information that makes appropriate planning for social protection difficult; an issue to be explored in section 4 and 5 of this chapter.

Central to this conceptualisation of vulnerability is the need to understand the risks and assets (broadly defined) that a family or community has. This leads to the third key lesson from the literature, which is that heavily economic measures such as income and expenditure or other monetary measures cannot accomplish this entirely. What these monetary measures most often exclude are critical factors such as access to health care, experiences of violence, and other measures that effect individual and household vulnerability.18 Sociologists, in their development of literatures on human capital, social capital and the like have led the way with research that considers vulnerability in non-monetary terms. For the most part, this area of work has focused less on the outcome of risk and more on the coping strategies19 and the two bodies of literature need to be brought closer together for a meaningful assessment of vulnerability. Equally, in these literatures, the emphasis has been less on poverty than on resilience: that is a household’s ability to resist downward pressures and the ability to recover from shock. So, for example, a household that is not consumption poor at the moment may be asset poor because their asset base declines over time making them more susceptible to shocks. A final distinction that is made in the literature, particularly the literature on livelihoods, is between the external component of livelihoods including risks shocks and stress and the internal component of livelihoods including ability to mitigate these. Thus for Davies20 vulnerability is the balance between the sensitivity and resilience of a livelihood system. This is, therefore an approach to understanding a particular outcome, whether it is poverty, food insecurity or compromised health status within a risk-response-outcome matrix.

This leads to the final key lesson from the literature, which is that the outcome measure of vulnerability varies (from food security to poverty to poor health etc). Therefore, depending on the outcome being measured, the extent to which monetary vs more social aspects of risk management are important. 21Having said this, almost all authors agree that the poor are more vulnerable regardless of the outcome measurement – so monetary measures matter – as either a causal factor or a predictor of vulnerability. In part, this is because social capital also requires investments (of both time and money) that the poor can seldom afford. However, some shocks might affect less poor household more such

18 Cf Coudouel, A. and Hentschel, J. ‘Poverty Data and Measurement’. Washington, DC: World Bank (2000).

19 Alwang ibid. 20 Davies, S. Adaptable livelihoods: Coping with food insecurity in Malian Sahel (St Martins Press 1996).21 See also Adato, M. and Bassett, L. What is the potential of cash transfers to strengthen families affected by

HIV and AIDS? A review of the evidence on impacts and key policy debates ( Joint learning initiative on children and HIV/AIDS/International Food Policy Research Institute 2008).


as market-induced vulnerability whereas others, natural disaster for example would affect the poor more than the wealthy.

2.3 Factors specific to developing contexts

This section draws out the lessons on conceptualising social protection from a range developing contexts that may be relevant for South Africa. For example, Holzmann22 identifies key issues informing the Risk and Vulnerability Assessments the World Bank has done in sub-Saharan Africa and their implications for the approach taken to social protection. These include:

High levels of poverty and inequality;��

Exposure to a broad range of risks associated with health and environment (e.g., HIV, ��drought, Malaria);Few social protection systems and those that exist serve the better off, for example ��unemployment insurance that is only available to those with formal employment;A tendency to rely on informal and unofficial coping strategies – sometimes with ��long-term adverse consequences including consuming less food, reducing education for children etc.

These factors make traditional approaches to social protection that often focus on the formal economy and public provision largely inappropriate. Similarly, Guhan23 argues that the formal social security model identified by the ILO has significant failings for developing contexts. He cites the ILO convention which claims that social security consists of medical care and benefits addressed to sickness, unemployment, old age, employment injury, family size, maternity, invalidity and widowhood. He argues that whilst such a comprehensive approach might be laudable, the nature and magnitude of need in developing countries make its implementation impractical. He argues that to be effective, a social protection system must consider inconsistent employment, underemployment, self-employment and irregular wage employment rather than the extensive focus on access to insurance and credit markets. Moreover, in developing contexts, there is limited investment in the kind of assets that might be needed to offset the wide range of shocks to which people are exposed. For Guhan,24 appropriate social security in developing contexts would include asset creation through small loans and finance schemes (for example to assist a family to dig a well); access to land, employment creation, establishment and enforcement of minimum wages, food subsidies and social

22 Holzmann, R. Social protection and labor at the World Bank, 2000-2008 (The International Bank for Reconstruction and Development/The World Bank 2009).

23 Guhan, S. “Social security options for developing countries” (1994) 133(1) International Labour Review 35-53.

24 ibid.



assistance for the most needy. Nevertheless, drawing on examples from India, Justino25 convincingly argues that social security mechanisms are important in developing contexts and, despite popular perceptions, that their costs are relatively low. Like Guhan,26 he emphasises the need to consider the basis on which a person becomes eligible for such assistance and this reinforced the importance of how we define vulnerability.

Similarly, writing on the South Asian context, Kabeer27 argues that traditional and largely informal forms of social protection (e.g., feeding schemes in temples and landlords extending food security to labourers) have been eroded by the transition to a cash economy. Where this transformation was not matched by increasing access to wage employment, poor households found themselves exposed to greater and new risks. This same process occurred during the enclosures in Britain and similar process elsewhere resulting in the massive poverty described in Dickens and other books of the era (see, for example, Polanyi). Whereas the dangers of the wage economy have been largely offset in Europe, Kabeer28 finds that Indian households still spend up to 25% of their income to reduce exposure to shocks and many implement no measures to reduce risks. Her review of literature shows a number of coping strategies including cutting basic consumption, forgoing regular employment for higher earning irregular employment, or selling property. She too emphasises the politics of deciding who is eligible for social protection and the trade off made in state provision between including the ineligible and excluding the eligible. Her main emphasis is on how the various state led forms of social protection (and indeed NGO driven micro-finance) have failed to reach the very poor. The key for the present study is that, given migrants’ weak relationship to the state, there are relatively few possibilities of benefitting from any state-centric social protection scheme. It is this challenge that faces migrants and has led to a rights-based and transformative approach to social protection.

2.4 rights-based and transformative approaches to social protection

Sabates-Wheeler29 argues that a concern for equity and social rights is missing from the World Bank’s perspective on social protection. For a rights-based approach to be effective, Sabates-Wheeler argues for a positive change in relationships between stakeholders. As such, social protection will be most effectively achieved by establishing a form of inclusive

25 Justino, P. “Social security in developing countries: Myth or necessity? Evidence from India” (2007) 19 Journal of International Development 367-382.

26 Guhan, S. “Social security options for developing countries” (1994) 133(1) International Labour Review 35-53.

27 Kabeer, N. “Safety nets and opportunity ladders: addressing vulnerability and enhancing productivity in South Asia” (2002) 20(5) Development Policy Review 589-614.

28 ibid.29 Sabates-Wheeler, R. and Devereaux, S. “Transformative Social Protection: The Currency of Social

Justice” in Barrientos, A. and Hulme, D. (eds.) Social Protection for the Poor and Poorest: Risk, Needs and Rights (Palgrave 2008).


citizenship. This means going beyond simple transfers of food and cash. Instead, there is a need to increase effective political participation (e.g., by supporting unionism) in ways that help people claim their rights. She also points to the importance of sensitisation and public awareness campaigns to inform people of their rights and strategies for claiming them. From this perspective, social protection can be used to transform gender relations within a household by educating men and women on their rights and how to access them. Following the work of Guhan,30 she identifies four components of comprehensive social protection:

Provision measures: these are about providing relief for those that are most vulnerable ��including transfers to the poor, for example, disability benefits etc.Preventive measures: these prevent deprivation and would include insurance such as ��savings schemes, pensions etc.Promotive measures: these enhance income potential and might include school ��feeding schemes or micro-finance.Transformative measures: address social justice and might include collective action ��for workers rights, eradicating discrimination in the workplace etc.

She argues, for example, that school feeding schemes are both provisional and promotive: provisional as a direct transfer to malnourished children and promotive because they encourage school attendance even during difficult times. Of course, such systems only work provided they reach the very poor and that school attendance makes a difference to ones wages later in life – both issues that we consider in the sections to follow. For example, affirmative action would be a policy-based approach to transformative social protection whereby unequal a social relationships are transformed. Furthermore, for Piron,31 rights-based approaches offer a normative standard and principle for considering social protection as an entitlement thereby increasing the pressure for effective delivery of social protection. Rights-based approaches, according to Piron32 places clear obligations on the state and have a strong basis in international human rights instruments. For Piron33 the importance of RBAs is that they move the focus away from just income to the realisation of all basic rights including housing, medical care, clothing, food, etc. Although there are limited resources for achieving these in developing context, Piron34 emphasises the importance of progressive realisation of rights as a central feature of most human rights instruments. For example, the language of rights has been central to the successful lobby by the Treatment Action Campaign in South Africa for access the HIV treatment. A further benefit of rights-based approaches is that they are often be grounded in existing

30 Guhan (supra).31 Piron, L. Rights-based approaches to social protection (Report commissioned by DFID 2004).32 ibid.33 ibid.34 ibid.



legal instruments. Thus, the right to social protection is not a new right but a realisation of rights that already exist in policy. However, in making this point he argues that rights-based approaches: “place[s] citizenship, and the importance of understanding social and political contexts, at the centre of the justification and delivery of SP”.35 The focus on citizenship in the literature on rights-based approaches is something we shall return to in the final section of this chapter as it is arguably a source of exclusion for migrant’s access to social protection. The language and logics that make a transformatory approach so powerful regarding citizens makes the position untenable and potentially dangerous for those ‘illegally’ or unwanted in a society. Piron notes that: “social protection schemes are more secure when they are based on a notion of political community and solidarity which the hypothetical ‘social contract’ between the state and its citizens embodies.”36 They therefore emphasise the importance of the notion of citizenship for realisation of social protection. From their perspective, the participation of citizens through a range of ‘channels of contestation’ such as advocacy, judicial systems and policy channels is critical to claiming rights. While they do emphasise that social protection should be rooted in notions of universal rights (i.e., beyond just citizenship rights), they do not elaborate how this will function in practice and what kinds of rights may be excluded for non-citizens. Indeed, as Arendt warned us more than fifty years ago, practical rights are usually exclusively the domain of citizens or ‘invited’ guests. The only reference to non-citizens included in the discussion of a RBA by Piron is in brackets “such a perspective means…citizens (but also non-citizens) can claim it”.37 While the authors acknowledge that the greatest challenge with RBAs is in their implementation, far more attention needs to be paid to the theoretical (let alone practical) ability of undocumented migrants to appeal to rights largely reserved for citizens. This and other critical reflections on social protection for migrants will be elaborated further below.

2.5 Social protection for migrants in South Africa

Authors’ writing about social protection predictably focus on vulnerable groups. Nevertheless, reaching the poor has been complex and many social protection interventions have in fact reached the near poor rather than those who are extremely poor or extremely vulnerable to other factors such as food insecurity.38 There has, recently been a tendency to focus on specific vulnerable groups such as female headed households or those working in the informal sector. Within this literature there is a particular focus on those in the informal sector. Recently attention has turned to migrants as a possible

35 ibid 3.36 ibid 16.37 ibid 6.38 See Kabeer, N. “Safety nets and opportunity ladders: Addressing vulnerability and enhancing

productivity in South Asia” (2002) 20(5) Development Policy Review 589-614.


vulnerable group. Sabates-Wheeler39 outlines why migrants might be such a vulnerable group in the table below:

Migration-Specific Vulnerabilities by Determinant of Vulnerability:40

Determinants of Vulnerability Temporal: Stages of the Migration Process

Spatial/Environmental Transit:Environmental hazards: especially in the case of undocumented migrants.Risks associated with dangerous climate/geography/remoteness from points of help; health risks (HIV/AIDS).Destination:Re-location constraints: unfamiliar with surroundings (especially international migrants); problems in acquiring adequate housing. For undocumented migrants: constant need to remain hidden and ‘unidentified’, leads to exclusion from livelihood promoting possibilities. Hazards associated with work environment; dirty, dangerous, demeaning work.Health risks. ‘Ghettoisation’ of immigrant communities (e.g., urban informal settlements).Family at Source:Remoteness from main income earner. Possible decline into poverty over the longer term if remittances are not forthcoming.

Socio-Political Transit:Exploitation; lack of legal representation (illegal); lack of legal protection.Destination:Lack of representation (illegal); lack of rights to formal institutions due torestrictive legislation; lack of access based on discrimination; exploitation;more prone to injustices; discrimination and disadvantage of some groupsto education, social services and economic opportunities; unequaldistribution of resources; denied participation in political life; lack of rights due to illegal status.Family at source:

Socio-Cultural Transit:Social exclusion based on ethnicity or illegal status; cultural devaluation disadvantage;1 isolation; marginalisation; exclusion from participation in social life. Exclusion of certain groups more than others (women, men; children, elderly); harassment.Destination:(as above); language and cultural barriers, especially in the case of international migration.Family at source:Children may drop out of school in response to the drop in family labour; the elderly may not obtain as much care; burden on family members’ time at source is likely to increase. This latter point also holds for many migrants in destination, especially undocumented migrants.

39 Sabates-Wheeler, R. “Migration and social protection: A concept paper” (Institute for Development Studies (IDS) Working Paper 2003).

40 Sabates-Wheeler ibid 14.



This table, whilst speculative, allows us to ask key questions of the data that does exist in South Africa on migrants’ access to social protection. In particular:

Are migrants more vulnerable that South Africans? Which South Africans are they ��more vulnerable than and why?What are the specific risks and shocks facing migrants? ��

What measures, promotive preventative and coping strategies are in place or do ��migrants employ in the face of shocks?What are the outcomes of the shocks for migrants relative to South Africans?��

How does what we know about the social protection of migrants help us ��reconceptualise social protection?

Before beginning to answer these questions there are a number of points that can be raised about how migrants might fit within the conceptualisations of social protection outlined above. Each of these points is elaborated using existing data in section two of this chapter.

Firstly, if effectively implemented, a rights-based system to migrant social protection would help move discussions of migration policy beyond dominant security and welfarist frameworks. However, in order to be effective, such an approach would need to make a number of notable changes to current policy and practice. First, it would need to ensure that all people – regardless of citizenship – have the right to recognition as a person before the law. The first step in implementing such a policy is finding ways of improving documentation and legal status and this would require a new mechanism for people to migrate legally to South Africa. This could include a range of options such as job-seeker permits or a more comprehensive SADC free movement protocol. Ideally, the government should eventually expand this initiative to regularise all people currently within South Africa. Although not a guarantee of social protection, some form of legal status and documentation are critical to welfare and security: theoretically enabling access to employment and protecting against abuse at the hands of police. Almost five years ago, Durban was among the first municipalities to register street traders regardless of national or legal status. Similarly the Gauteng province has issued a memo stating that documentation of any kind is not a requirement for accessing Antiretroviral treatment. These moves a modicum of protection but the provision of documents is not enough. To promote migrants’ full economic participation, any intervention must also include training relevant officials to recognize and respect these forms of documentation and supporting disciplinary action against those who do not. Even when such documentation provides only limited protection or access to services, documentation can help promote an objective and consistent regulatory system that may ultimately enhance opportunities for all residents. Certainly, increased reliance on documentation can help fight corruption within the state and private bureaucracy. However without these kinds of changes mentioned above that would make the legal movement of migrants easier, simply


promoting access to documents will fall short as most migrants in South Africa, under the current legal regime, are not entitled to documentation.

Given the limited protection offered by documentation, the most controversial recommendation for enacting a transformatory approach as imagined by Sabates-Wheeler41 and others is the requirement for political participation. Political participation is not only a value in its own right, but is critical to the universal expansion of capabilities and claims.42 If we accept that migrants’ intentions and actions affect the communities in which they live, then we should also facilitate a role for migrants in influencing official policymaking. Policies formed without accurately assessing the interests and capabilities of all affected are unlikely to achieve their intended outcomes. More fundamentally, opportunities for participation are also critical in fostering the sense of community needed to expand economic opportunities across communities. Formal exclusion from participatory processes only encourages socio-political divides between citizens and non-nationals.43 Certain forms of political participation should probably be reserved for citizens (e.g., the right to elect leaders), but migrants may nonetheless be provided substantive opportunities to influence the policies directly affecting them. If the goal of government is to expand the capabilities of all people – to provide services, promote health, security, and prosperity – policies must be formulated with a comprehensive understanding of all residents.

Linked to this is the need to focus on qualifications and skills training. Many migrants to South Africa have professional credentials and qualifications that are not recognised by national authorities or professional associations in South Africa. For example, while South Africa faces an acute nursing shortage, thousands of refugee and migrant nurses remain unemployed because they cannot prove their qualifications. People who we would not expect to be highly vulnerable therefore become so. In other instances, a minimal degree of special training can be provided that will allow migrants to upgrade or adapt their existing qualifications in ways that will contribute to South Africa’s overall welfare. Whilst this is a central first step in the social protection of migrants, we should also be careful of assuming that formal employment offers better livelihoods than informal protection. As we will discuss below, those in the informal sector can fare fairly well but this sector carries complex risks and a heavy reliance on informal systems of social protection.

Even if these changes were possible or likely, there nevertheless remain challenges to implementing a transformatory approach in South Africa. This is primarily because it

41 Sabates-Wheeler, R. “Migration and social protection: A concept paper” (Institute for Development Studies (IDS) Working Paper 2003).

42 See Sen, A. Development as Freedom (Oxford University Press 1999). 43 See Amisi, B. and Ballard, R. In the Absence of Citizenship: Congolese Refugee Struggle and Organisation

in South Africa. Forced Migration Working Paper #16 (April 2005) http://migration.wits.ac.za/AmisiBallardwp.pdf. Accessed 1 May 2005; Mang’ana, J-M. The Effects of Migration on Human Rights Consciousness among Congolese Refugees in Johannesburg (MA thesis, University of the Witwatersrand 2004).



will be difficult to garner support for any effort seen as promoting foreigners’ welfare or socio-political incorporation. Even where migrants are technically able to participate in public planning mechanisms–chambers of commerce, community policing forums, or government run integrated planning processes (IDPs)—they are often overtly excluded or marginalised by South African participants. Second, such an approach depends heavily on institutions to ensure and promote basic rights. Without access to even basic legal protections or physical security, such strategies are unlikely to succeed. Third, and more fundamentally, we must explicitly recognise the limited impact of official policymaking: many of the factors affecting migrants’ lives and livelihoods take place outside the state. These include the denial of housing, labour exploitation, and violence. While the state ostensibly has a role in countering these trends, officials have been either unwilling or unable to do so. In many instances, the state and its agents play an active role in corrupt or extra-legal practices. Lastly, South Africa faces what is often termed mixed flows of migrants. While a developmental and transformatory approach may effectively assist voluntary or labour migrants, a more interventionist and welfarist approach may be needed for those fleeing violence, persecution, or natural disasters. With no effective way of distinguishing these populations, the latter group’s vulnerabilities are likely to go unaddressed.

An approach premised on gradually expanding rights through engagement with host communities’ economic and social process also presumes migrants’ desire for such integration. As our research has repeatedly demonstrated, many migrants (international and internal migrants) see their current place of residence as a site of profit and passage. For those displaced by war or conflict, they may only be seeking temporary protection. Rather than make social or economic investments, they instead try to extract and accumulate with the idea of quickly moving on or remitting money to family and friends elsewhere. Indeed, many migrants actively position themselves on margins of host communities’ where they can benefit from economic opportunities without being bound by social or political obligation.44 Undoubtedly, a friendlier policy framework would encourage many people to invest in the areas in which they live. However, such interests cannot be presumed.

Finally, the broad focus of a transformatory approach can risk making any intervention by the state or non-state actor’s social protection. In the current climate of little political and popular support for provision of social protection for migrants, this may in fact legitimate the state withdrawal from even the limited role it currently plays in providing social protection to migrants. As with many of the critiques of social capital, to broad a definition of social protection can shift the responsibility for managing poverty onto poor communities themselves in the name of social protection. This is often based on an overly romanticised notion of community and overstated assumptions about the extent to which

44 See Landau, L. and Monson, T. “Displacement, Estrangement, and Sovereignty: Reconfiguring State Power in Urban South Africa” (2008) Government and Opposition 43.


poor people function as a coherent community. The kind of social protection for migrants that has arguably been the most controversial is social transfers. This can be seen in the resistance to ensuring migrants access social grants with access to disability grants being provided to refugees and asylum seekers only after a court case and the implementation of this 2008 judgement still not realised. Thus any approach that can be perceived as giving handouts to migrants is going to be extremely unpopular and the state is likely to minimise these interventions if they can argue that social protection is provided by NGOs and others. This returns us to the debates about whether social protection is only the public policies that assist people to mitigate the effects of shocks and manage risks. For migrants this is complicated by their current tenuous relationship with the state.

3. LEGAL frAMEWorKS for SoCiAL protECtioN of MiGrANtS iN SoUth AfriCA

3.1 outline of the relevant laws

This section outlines the key legislation, policy and jurisprudence that offers social protection in South Africa. Here we consider the nature of the protection offered and the extent to which it can, and has, been applied to migrants. This section thus provides a basis for assessing the access migrants should have to formal social protection mechanisms in South Africa.

International Legal Framework: The following documents are central international documents for the protection of migrants: (a) Universal Declaration of Human Rights (UDHR) 1948; International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966; (b) International Convention for the Elimination of all Forms of Racial Discrimination (ICERD) 1969; (c) Convention for the Elimination of all forms of Discrimination against Women (CEDAW) 1979; (d) African Charter on Human and Peoples’ Rights (ACHPR) 1981;(e) Convention on the Rights of the Child (CRC) 1989.

National Legal Framework: At a national legislation level, the central documents are: (a) the 1996 Constitution; (b) Refugee Act 1998; (c) Immigration Act of 2003; (d) Social Assistance Act 2004; (e) Children’s Act of 2005; (f) Housing Act of 1997; (g) Basic Conditions of Employment Act of 1997; (h) Labour Relations Act of 1995; (i) Employment Equity Act of 1998; (j) South African School Act of 1996;(k) National Department of Health Memo. 2007. BI 4/29 REFUG/ASYL 8 2007, 19 September 2007; (l) Social Assistance Regulations Act of 2008; (m) Admission Policy for Ordinary Public Schools (Notice 2432 of 1998).

The section that follows discusses the extent to which the documents listed below provide protection to migrants in key areas.



3.2 Extent of protection offered

Health: The Constitution (sec. 27), the Refugee Act (sec. 27 (g)), ICESCR (art. 12), and the ACHPR (art. 16), guarantee and recognise the right of ‘everyone’ to access health care. The words “everyone “or “every individual” in their expansive sense should include refugees, asylum seekers and undocumented persons. The National Department of Health Directives (September 2007), further guarantees the right of refugees and asylum seekers with or without permits to the free access of Antiretroviral Therapy. According to this NDOH Directives, undocumented migrants should also have access to ART and other life saving basic health services.

Education: The ACHPR (art.17), ICESCR (art. 13), the Constitution (sec. 29), provides for the right to basic education for all, including adult education. The South African School Act (sec.4 (5)) as well as the provincial education laws makes provision for compulsory basic education for all learners from the age of seven, to the age of fifteen, based on the principle of non-discrimination. The South African School Act (sec. 5(3)(a)) also provides the right to education even where fees cannot be paid. The Admission Policy for Ordinary Public Schools – Notice 2432 of 1998 (Para. 19) expressly states that the provisions of the South African School Act applies to non-nationals. An expansive interpretation of “all” should include all types of migrants. In addition, since section 29 of the Constitution is a Chapter II right, by virtue of section 27(a) of the Refugee Act, this right is extended to refugees as well.

Housing: The Constitution (sec. 26), ICESCR (art. 11), Refugee Act (sec. 27(a)), UDHR (Art 25); Refugee Convention 1951 (Art 21); ICERD (art 5(e)(iii)); CEDAW (art 14(2)(h)); CRC (art 27(3)), guarantee and recognise the right of ‘everyone’ to adequate housing.

Social Assistance: The Constitution (sec.27(c) & 28 (1)(c)), ICESCR (art. 9), makes provision for social assistance to everyone. The Social Assistance Act (Regulations of 22 August 2008, (sec.2(c), 3(a), 6(1)(f),7(c),9(1)(b)), makes provision for the various types of social assistance to persons including permanent residents and refugees.

Labour Rights: The Constitution (sec. 23), ACHPR (art. 15), ICESCR (art. 6), and Refugee Act (sec. 27 (f)) provides for the right to work. The Employment Equity Act prohibits unfair discrimination on grounds of race, gender, sex, pregnancy and marital status, among other things. An expansive interpretation of these laws would include all types of migrants.

General Provision: Section 27 and 28 Immigration Act – permanent residents have the same rights as citizens.


3.3 Jurisprudence from Constitutional Court

Since democracy in 1994 there have been a number of constitutional court rulings that have implications for the social protection of migrants in South Africa. These include:

3.3.1 Right to social security and education

Khosa & Others v Minister of Social Development & Others, Mahlaule & another v ��Minister of Social Development & Others45

The applicants who were indigent Mozambican citizens with permanent resident status in South Africa brought an action challenging the 1992 Social Assistance Act, which limited entitlement to social grants for the aged to South African citizens, and would prevent children of non-South African citizens in the same position as the applicants from claiming any of the childcare grants available to South African children. The application alleged that exclusion of non-citizens from social grant entitlements was unconstitutional in terms of sections 27 (right to health care, food, water and social security), 28 (children’s rights), 9 (equality), amongst others.

The Constitutional Court held that the Constitution vests the right to social security in “everyone” and that permanent residents are bearers of this right. The exclusion of permanent residents from the welfare scheme was both discriminatory and an unreasonable way to achieve the realisation of the right to social security. The Court confirmed that the exclusion of children from access to these grants amounted to unfair discrimination on the basis of their parents’ nationality and that “the denial of support in such circumstances to children in need trenches upon their rights under section 28(1)(c)” The Court read in the words “or permanent resident” after the word “citizen” in each of the challenged sections.

Although the 2004 Act that replaced the 1992 Act failed to incorporate the Constitutional Court’s directives, the Regulations implementing the Act, however incorporated theses directives.

3.3.2 Labour rights

Larbi-Odam and others v MEC for Education (North-West Province) and another�� 46

The Applicant brought an action challenging the validity of Regulation 2(2) of Regulations dealing with the terms and conditions of employment of educators (GN R1743 of 13 November 1995) which provided that, subject to certain exceptions, only South African citizens may be appointed to permanent teaching posts in state schools. In terms of the regulation, eight temporarily-employed foreign teachers were issued with

45 2004 6 BCLR 569 (CC).46 1997 BCLR 1655 (CC).



notices of termination. Some of them had permanent residence and some temporary residence permits.

The Constitutional Court declared Regulation 2(2) invalid on the grounds that it was unfair discrimination inconsistent with the interim Constitution. Although the Court noted that citizenship was not a listed ground of prohibited discrimination in the Constitution, it nevertheless held that the discrimination was unfair. Denying permanent residents job security when they are allowed to live and work in South Africa indefinitely (and to apply in due course for citizenship) was unfair discrimination. Although the Court did not come to a final conclusion as to whether the regulation was unfair discrimination with respect to temporary residents, the Court decided to invalidate the regulation in its entirety given the injustice that might be caused if the regulation was invalidated only with respect to permanent residents and not with respect to temporary residents, the Court decided to invalidate the regulation in its entirety.

The union of Refugee Women and Others and The Director of the Private Security Industry ��Regulatory Authority and Others47

The applicants in this case were a refugee voluntary association and twelve refugees whose registrations as security service providers were withdrawn or whose applications for registration were refused by the Private Security Industry Regulatory Authority (the Authority). The Private Security Industry Regulation Act 56 of 2001 (the Security Act) requires security service providers to register with the Authority. Section 23(1)(a) of the Security Act lists citizenship or permanent residence as a requirement for registration. Despite the provisions of section 23(1)(a), section 23(6) confers upon the Authority the discretion to register any applicant as a security service provider, on good cause shown and on grounds which are not in conflict with the purpose of the Security Act and the objects of the Authority. The applicants challenged section 23(1)(a) on the basis that it constitutes a violation of the right to equality, and discriminates against them on the basis that they are not citizens or permanent residents. Alternatively, they challenged the validity of the decisions of the Authority.

Although the Court held that the right to equality was not violated by section 23(1)(a), it however acknowledged the relevance of both section 27(f) of the Refugee Act and the fact that refugees are a vulnerable group. It also expressed the view that the Authority should, provide refugee applicants with information on the possibility of exemption in terms of section 23(6) of the Security Act, as well as on how to apply for it.

3.4 Gaps in existing laws

In spite of South African human rights law being considered some of the best in the world, when applied to migrant groups, a number of protection gaps emerge. These include:

47 2007 (4) BCLR 339 (CC).


Health:�� Although the NDOH Directives makes provision for refugees, asylum seekers and undocumented migrants to have access to basic health services, there is no mechanism in place to ensure that public health institutions comply with these directives and denial of services is widespread.48

Education:�� While the Admission Policy for Ordinary Public Schools guarantees the benefits of free admission and fees to all, including undocumented migrants,49 this paragraph is in direct conflict with the Immigration Act (section 39), which makes an express prohibition in the case of illegal foreigners. Housing:�� While the Housing Act does not contemplate refuges and asylum seekers in its purview, the Immigration Act (sec. 40), goes as far as prohibiting the harbouring of illegal foreigners even by hotels.Social Assistance:�� While the Social Assistance Regulations Act makes provision for different categories of migrants including refugees to access various types of social assistance, there is not yet a uniform eligibility assessment tool in place. There is also no provision in the existing laws for a Consolidated Relief Fund for refugees and other vulnerable groups.Labour:�� Although the right to work by refugees and asylum seekers is guaranteed under South Africa’s domestic and international legal commits, the normal 3 months period covered by an asylum seeker’s permit generally poses a difficulty for them to be meaningfully engaged. While the Immigration Act (section 38) prohibits the employment of illegal foreigners, there is no protocol that guarantees the protection of undocumented migrant workers who approach the Courts or CCMA for redress in disputes arising from their employment.General note:�� In general, South African legislation and institutions, except for a few cases (access to life saving treatment, and work) do not recognize the rights of undocumented migrants to benefit from the social rights entrenched in Chapter II of the Constitution. Subsidiary legislations also do not recognize undocumented migrants. The Constitutional Court in its jurisprudence has interpreted the meaning of “everyone” in the Constitution to exclude undocumented migrants.

48 See Consortium for Refugees and Migrants in South Africa (CORMSA) Protecting Refugees, Asylum Seekers and Immigrants in South Africa Johannesburg, June 2009.

49 Admission Policy for Ordinary Public Schools (Notice 2432 of 1998) par 19.



BiBLioGrAphY

Publications

Adato, M. and Bassett, L. What is the potential of cash transfers to strengthen families affected by HIV and AIDS? A review of the evidence on impacts and key policy debates ( Joint learning initiative on children and HIV/AIDS/International Food Policy Research Institute 2008).

Alwang, J., Siegel, P. and Jorgensen, S. Vulnerability: A view from different disciplines (The World Bank Social protection discussion series 2001).

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Kabeer, N. “Social Exclusion, Poverty and Discrimination: Towards an Analytical Framework” (2000) 31(4) IDS Bulletin 6.

Landau, L. and Monson, T. “Displacement, Estrangement, and Sovereignty: Reconfiguring State Power in Urban South Africa” (2008) Government and Opposition 43.

Mang’ana, J-M. The Effects of Migration on Human Rights Consciousness among Congolese Refugees in Johannesburg (MA thesis, University of the Witwatersrand 2004).

Mathee, A., Barnes, B., Naiker, N., Spadoni, R., and Mogotsi, M. The health environment and development study report (Medical Research Council 2006).

Moser, C. “Insecurity and social protection: has the World Bank got it right?” (2001) 13 Journal of International Development 361-368.

Piron, L. Rights-based approaches to social protection (Report commissioned by DFID 2004).

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Sabates-Wheeler, R. and Waite, M. Migration and social protection: a concept paper (Development Research Centre on Migration, Globalisation and Poverty 2003).

Sabates-Wheeler, R. “Migration and social protection: a concept paper” (Institute for


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Sabates-Wheeler, R. and Devereaux, S. “Transformative Social Protection: The Currency of Social Justice” in Barrientos , A. and Hulme, D. (eds.) Social Protection for the Poor and Poorest: Risk, Needs and Rights (Palgrave 2008).

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159interview of sadc migrants in south africa on their overall social protection strategies, with a focus on informal protection strategies

chapter 7

interview of sadc migrants in south africa on their overall

social protection strategies, with a focus on

informal protection strategies

Ingrid Palmary & loren B. landau

1. access to social protection for migrants in south africa

This chapter outlines what information currently exists in South Africa about the social protection of migrants. It is intended to be read with chapter six on how social protection might be conceptualised for migrants in the region. Whilst in some areas, data is sparse, in others a far clearer picture of the social protection of migrants emerges. Section 1 looks at the profile of migrants in South Africa including how many migrants come to South Africa, where they go to and what work they do. Section 2 looks at whether migrants are more vulnerable to South Africans and, if so, in what ways. Section 3 considers the coping mechanisms employed by migrants, relative to South Africans, in the face of livelihood shocks. Section 4 brings out the implications of this data for the social protection of migrants in South Africa. Finally, appendix one presents the findings of a study on social protection for Malawian migrants in Johannesburg that was conducted in February 2009.

2. section 1: a Brief profile of migrants in south africa

Scholars often explain migration with reference to the three D’s: demography, development, and disparities. Indeed, all available evidence suggests that the primary reason for migration to and within South Africa is due to variations in economic opportunities within the country and the region. A more nuanced analysis of migration motivations and trends also points to the three P’s. While the majority come seeking ‘Profit’, others come seeking ‘Protection’ from political or domestic persecution, natural disasters, or violence. A last group arrives in South Africa seeking ‘Passage’: onward movement to a final destination elsewhere. South Africa is also seeing a great diversification in its population’s migration trajectories. Whereas Apartheid-era South African migration policy promoted permanent White immigration and temporary Black


migration, the post-apartheid period is characterised by a mix of circular, permanent, and transit migration. Indeed, such impermanence is encouraged by the current policy frameworks, the difficulties migrants have in accessing secure accommodation, and the rapid rate of deportations as will be discussed in the course of this chapter.

No one knows how many international migrants are in South Africa. However, cross sectional studies give us some indication of how long they have been there, how long they stay, and what they do while they are in the country. Despite rapid changes in migration patterns, the South African government has largely failed to establish data collection mechanisms that could potentially inform pragmatic social protection strategies. Instead, current policies continue to render most international migration bureaucratically invisible by denying them documents and discouraging migrants’ engagement with official bodies. In almost all instances, official figures on both domestic and international migration and its effects raise significant questions of data quality. Such weakness is tied to two factors: (1) the difficulty in accurately measuring migration given the country’s extended borders, poor data on the South African population, and mixed migrations within, into, and out of the country; and (2) migration’s association with highly politicised issues surrounding nation-building, citizenship and belonging. Consequently, the information presented below provides only rough quantitative estimates of who is coming and where they are going. Equally, as much of the data we have is cross sectional, it is unable to provide the time bound analyses of social protection that have been discussed in section 1 of this chapter. Nevertheless, for the Gauteng province the area that receives the highest numbers of migrants both internal and cross border, several surveys help to paint a picture of the risks and coping strategies of migrants and South Africans alike. The table below shows the different datasets that have been included in this study:

2.1 how many are coming and where are they going?

While cross border migration has undeniably increased over the last decade (see figure 1), overall figures are far lower than most South African officials and citizens presume. Moreover, even in the immigrant densest parts of South Africa, the number of newly arrived non-nationals is dwarfed by the number of recently arrived citizens. The most recent South African census1 found only 477,201 foreign born residents out of a total of close to 45 million. Due to sampling errors, the state statistics agency (Statistics South Africa or Stats SA) later revised estimates to between 500,000 and 850,000. These numbers have climbed since the 2001 census because of relatively strong economic growth in South Africa, regional integration, and the seemingly intractable Zimbabwe crisis. According to the 2007 Community Survey, a national representative survey conducted by Stats SA, the total number of foreign-born residents is just over 1.2 million or 2.79% of the total population. It is unclear how much of the increase since 2001 is due to improved sampling or an actual increase. Although there are suggestions that Stats SA

1 South African census (2001).

161iNtErViEW of SADC MiGrANtS iN SoUth AfriCA oN thEir oVErALL SoCiAL protECtioN StrAtEGiES, With A foCUS oN iNforMAL protECtioN StrAtEGiES

has again undercounted non-nationals – as they have undercounted the homeless and other marginalised groups – there have been no serious challenges to findings from the Community Survey. Despite the lack of firm evidence, there are regular claims by officials that 2-3 million Zimbabweans now live in South Africa While extrapolations based on data in Zimbabwe suggest that there could be 1-1.5 million Zimbabweans in South Africa empirical research in destination areas and elsewhere in south Africa suggests that these numbers are ill-informed exaggerations.2 Claims that there are 8-10 million ‘undocumented’ migrants in the country are equally overstated.3

As in destination countries around the world, the total number of non-nationals living in South Africa is a mix of documented and undocumented migrants along with refugees and asylum seekers. The number of temporary work, study, business, and tourist permits granted annually has also consistently increased since the end of apartheid.4 The overall number of temporary permits and visas thus went from 3.0 million to 9.9 million between 1992 and 1999. During the same period, permanent immigration permits went from 14,000 a year in 1990, to 4,000 at the end of the 1990s. The number then rebounded to around 10,000 a year by 2004.5

In addition, there are also a relatively small, but expanding, number of refugees and asylum seekers among the non-nationals living in South Africa. The number of asylum seekers has grown far faster than that of refugees due to the inability of the Department of Home Affairs to process the applications within the timeframes stated in the Refugees Act. According to the Department of Home Affairs, there were 170,865 asylum seekers at the end of 2007 compared to 36,736 people who had been recognised as refugees under the 1998 Refugees Act (implemented in 2001). In 2007, the department received 45, 673 new applications but made only 5,879 decisions of which 29% were successful. This brought the total backlog of asylum cases to 89,000 at the end of 2007. Many asylum seekers may have now left South Africa or regularised their stay through other means. Similarly, the number of asylum seekers undoubtedly includes people who have filed multiple applications (often because the DHA has misplaced their records) or who have left the country or applied for other permits. Despite these qualifications, the global figures would likely be far higher if the South African government had not effectively prohibited Zimbabweans from making asylum applications before 2006 or had provided a mechanism for Zimbabweans to apply for asylum without first travelling to Pretoria or Johannesburg. Nevertheless, following the recognition that Zimbabweans had every right to apply for asylum, Zimbabweans immediately topped the asylum seeker table. Many Zimbabweans continue to seek protection although the South African government has

2 See Makina D Survey of Profile of Migrant Zimbabweans in South Africa: A Pilot Study September 2007.

3 See Forced Migration Studies Programme and Musina Legal Advice Office Special Report: Fact or Fiction? Examining Zimbabwean Cross-Border Migration into South Africa 2007.

4 Statistics South Africa, Tourism and Management 1984-2007.5 Department of Home Affairs Annual Reports, 1990-2004.


recognised few – including victims of torture – as refugees. Compared to 33,351 pending applications at the end of 2007, only 477 Zimbabweans were granted refugee status.6

There are a few initial conclusions that we can draw from this brief profile that are important for conceptualising social protection in the region. Firstly, most migration is undocumented and therefore recourse to formal social protection is unlikely. Relative to other migrants, South Africa hosts few refugees and asylum seekers. Indeed, most migrants migrate undocumented exposing them to a number of vulnerabilities that we will discuss below. Finally migration is this region is both irregular and circular. This means that the provision of basic services needs to accommodate a constant mobility of people rather than once off immigration.

2.2 Spatial distribution

There are distinct spatial dynamics to both international and domestic migration in South Africa. In previous decades, much of the international migration concentrated in agricultural and mining areas. Since the early 1990s, both inter-national and domestic migrants are increasingly concentrated in the country’s urban centres (see Figure 1 and Table 1).

Figure 1: Distribution of non-nationals in South Africa

Note: Map developed by Forced Migration Studies at Wits with uNOCHA (Pretoria)

6 Department of Home Affairs Annual Report 2008.

Gauteng Province Percentage of Recent MigrantsBy District Municipalities (2001)

(Living out of South Africa 5 years earlier)

2001

SOURCE :Stats SA, 10% Sample of the2001 Population Census

0.5% to 1%0.2% to 0.5%0.1% to 0.2%

LEGEND

District Municipalitieslabelled with Actual figures

> 1%

<0.1%

0.04

0.05

0.010.15

0.61

0.36

0.39

0.17 0.16 0.07

0.88

0.08

0.22

0.36

0.45

0.39

0.1

0.140.48

0.17

0.17

0.03

0.180.18

0.06

0.06

0.05 0.05

0.060.030.14

0.22

0.471.09

1.24

0.470.72

0.11

0.190.42

0.13

0.13

0.040.27

0.02

0.01

0.080.12

0.1

0.04

0.02

0.04


Table 1: Distribution of Non-Nationals by Province

Province Population Foreign-born

Percentage of foreign-born

Non-Nationals

Percentage of non-Nationals

Western Cape 5,278,585 170,019 3.22 40,835 0.90Eastern Cape 6,527,747 40,182 0.62 14,620 0.23Northern Cape 1,058,060 19,406 1.83 1,895 0.23

Free State 2,773,059 83,088 3.00 27,995 1.03KwaZulu-Natal 10,259,230 98,237 0.96 38,717 0.41North-West 3,271,948 116,929 3.57 50,773 1.39Gauteng 10,451,713 578,387 5.53 212,715 2.41Mpumalanga 3,643,435 101,534 2.79 35,822 1.15Limpopo 5,238,286 60,541 1.16 41,074 0.78South Africa 48,502,063 1,268,324 2.61 464,446 1.04

Source: StatsSA (2007) Community Survey

In order to assess the extent to which the profile of migrants might render them more vulnerable than South Africans, or the extent to which being unable to claim social protection is a consequence of migration status, we need to compare migrants with South African who live in similar circumstances. Given the high rates of internal migration in South Africa, we will look briefly at the how internal South African migrants compare. As with cross border migration, we see large numbers of internal migration with Gauteng equally being the province of destination for most internal migrants. In addition, there are significant numbers of people moving from the Eastern Cape to the Western Cape. This reflects migration to the largest economic centres of the country.This is most evident in Gauteng Province. Although the smallest of South Africa’s nine provinces (less than 2% of the landmass), it contributes close to 34% of its gross domestic product. This represents close to 10% of the GDP for sub-Saharan Africa.7 By far the most urbanised population, it is also the most cosmopolitan. In Statistics South Africa’s 2007 Community Survey, 5.6% of its population was born outside South Africa, almost double the national average. In 2007, Gauteng Province hosted 46% of South Africa’s population born outside South Africa. This is up from 42% in 2001 and is expected to increase in the years ahead. This is not surprising when one considers the net migration gain in the province, (i.e., the difference between the arrivals and departures from the province): 418,000 between October 2001 and February 2007. Most of these are domestic migrants, but a significant proportion is from outside the country. Even within the Province, non-nationals are concentrated in certain cities (7.9% of Johannesburg is foreign born) and particular neighbourhoods. Whereas inner-city areas like Yeoville, Berea, and Hillbrow now are close to or above 50% foreign-born, the number of non-nationals is negligible elsewhere in the city.

7 Figures from the Gauteng Development Agency http://www.geda.co.za/live/content.php? Category_ID=30.


It is also worth noting that international migrants’ origins differ significantly among Provinces and cities. While Mpumalanga and Limpopo Provinces primarily host Mozambicans and Zimbabweans, there is a far greater diversity of foreigners living in Durban and Cape Town including many more Zimbabweans, Mozambicans, Congolese and Angolans. Somalis are also present in all major cities and smaller towns, but in much smaller numbers. As each of these groups is likely to have come to South Africa for different reasons, the social protection and developmental impacts also significantly differ.

Even if international migration attracts the most political attention and popular opprobrium, domestic mobility is far more significant in numeric terms. Fully explaining the dynamics of inter-community and inter-provincial migration would require another chapter far longer than this. Suffice it to raise a number of critical points. First, research by the South African Cities Network8 and others clearly illustrates the spatial dynamics of migration to particular urban centres. In Metsweding, a smaller municipality in Gauteng Province, more than 10% of the total population has recently moved there. In Durban, the figure is less than 1%. And while discussions of urbanisation typically focus on primary cities, the fastest growing parts of Gauteng are not Johannesburg and Pretoria but rather smaller communities beyond the ‘urban edge’ (See Figure 2). The most notable and controversial effect of this growth has been the expansion of poorly serviced informal settlements (i.e., shantytowns) ringing more established and well-serviced formal settlements.

As a result of these internal movements, out migration is also significantly shifting population profiles of a number of the country’s smaller and less prosperous communities. For example, Chris Hani municipality in the Eastern Cape has lost more than 8.5% of its population over the past decade.9 Many of those who left are young men heading for the Western Cape.10 Consequently, there are significant distortions in population pyramids in both sending and receiving communities.11

Whilst much of the migration both cross border and internal is therefore to Gauteng (and to a lesser extent the Western Cape) there are nevertheless substantial differences among the migrants who end up in the province. As we will see in the sections that follow, the spatial distribution of migrants in and around Johannesburg is a central indicator of the levels of social protection they are able to access. Based on the RENEWAL data, figure 2 below indicates who ends up in the formal inner city areas of Johannesburg and who ends up in the informal area of Sol Plaatjies.

8 South African Cities Network State of the cities report 2006 16.9 South African Cities Network ibid 18.10 Dorrington RE Projection of the Population of the City of Cape Town 2001-2021 (Report prepared

for the Information and Knowledge Management Department, City of Cape Town) (Centre for Actuarial Research, University of Cape Town 2005).

11 See Collinson M, Kok P and Ganenne M Migration and changing settlement patterns: Multilevel data for policy (Report 03-04-01) (Statistics South Africa 2006).


Figure 2: Numbers of migrants compared to South Africans

Source: RENEWAL study

Sol - Plaakjes

51%

Berea

14%

Hillbrow

10%

Jeppestown

25%

South African internal migrants

Sol - Plaakjes

59%

Berea

23%

Hillbrow

9% 9%

Jeppestown

Always lived in Johannesburg

Sol - Plaakjes

14%

Berea

33.3%

Hillbrow

37.4%

13.3%

Jeppestown

Cross - Border migrants

51%

14%

10%

25%

59%

23%

9% 9%

14%

33.3%

37.4%

13.3%

Sol-Plaatjies

Sol-Plaatjies

Sol-Plaatjies

Berea

Berea

Berea

Hillbrow

Hillbrow

Hillbrow Jeppestown

Jeppestown

Jeppestown


This figure shows that internal South African migrants mostly reside in the informal settlement (Sol-Plaatjies) and in Jeppestown. Those who have always lived in Johannesburg are mostly found in informal settlement (Sol-Plaatjies) and in Berea. Cross-border migrants mostly reside in the formal areas of Berea and Hillbrow. This has implications for people’s economic opportunities and for their ability to access grants, health education and other services as will be described below. Furthermore, there are significant gender disparities in who lives in the inner city and who lives in the informal settlement with women far more likely to reside informally. This is indicated in figure 3 below.

Figure 3: Mosaic plot of gender versus (in) formal residence

Source: RENEWAL Study

2.3 Who are they and what do they do?

Post-apartheid international migration movements towards South Africa have been characterised by three major demographic features that distinguish them from the situation in the late 1980s: the diversification of migrants’ origins, younger migrants and feminisation. The great post-apartheid change is increase in both permanent and temporary African and Asian migrants. Among these are significant numbers of refugees and asylum seekers. Although European permanent immigrants continued to dominate in absolute terms until 1998, since 2000, most migrants have come from Africa and Asia.

Robert Mattes et al. have demonstrated in a 1999 study that the profile of qualified migrants and immigrants is revealing of a divide between those who settled in South Africa before 1991 and those who arrived since. This study indicates that out of a sample of 400 people

Male Female

1

2

Respond sex

0.00

1.00

(in)

form

al

1 = Informal residence

2 = Formal residence

0.75

0.50

0.25

0.00

(in)

form

al

Respond sex

Male Female

1 = Informal residence

2 = Formal residence

1.00

2

1


interviewed, 73% of qualified European migrants arrived before 1991 whereas 87% of qualified African migrants outside SADC countries had arrived after that, with SADC migrants equally distributed in the two groups. The study confirms this dichotomy in status and skills between migrants arrived before and after 1991. Thus, three quarters of the qualified migrants who entered South Africa before 1991 were permanent residents whereas a very large proportion of those arrived after 1991, essentially Africans, only held temporary permits.12 Table 8 indicates the education levels of nationals compared to non-nationals.

Table 2: Levels of Education by South African or Foreign Citizenship (2001)

Percent Nationals Percent Non-NationalsNo schooling 15.9 16.0Some primary 30.0 18.9Complete primary 7.0 7.0Some secondary 28.0 26.1Grade 10/ Std 10 13.9 16.9Tertiary 5.3 15.2Total 100 100

Source: StatsSA, Population Census, 2001

Whilst non-nationals make up a significant number of those with no formal schooling, they also make up a larger share of those with tertiary education that South Africans do. This suggests that within the migrant community there is a general trend towards high levels of education with pockets of vulnerability.

2.4 reasons for migration and documentation type

As mentioned in the introduction to this chapter, migration to South Africa is, in large measure, a result of wealth inequalities in the region, the effects of political instability and to attain other opportunities such as education. The reasons for migration among Johannesburg-based migrants are overwhelmingly for economic reasons (49.8%) or to escape persecution (43.7%). Significantly, the reasons for migration for internal migrants are remarkably similar although more internal migrants cite reunification with family as a reason for their migration. This is indicated in the table below:

In the RENEWAL study these findings were even clearer. Overall, the most common reasons reported for coming to Johannesburg were for economic reasons (79%); to be reunited with relatives (9%) and for education (6%). Internal South African migrants mostly (80%; n = 227) reported coming for economic reasons; 9% (n = 25) to reunite with relatives, and 7% (n = 20) for education.

12 Mattes R, Crush J and Richmond W The Brain Gain: Skilled Migrants and Immigration Policy in Post-Apartheid South Africa Idasa Migration Policy Series No. 20 (Idasa 2000).

168 Access to sociAl services for non-citizens And the portAbility of sociAl benefits within the southern AfricAn development community

The UNOCHA vulnerability study showed the range of documentation that cross border migrants held. Overwhelmingly, those who were in the informal settlement were undocumented although 35% in inner city Johannesburg also reported having no documents. The highest proportions of refugees and asylum seekers are observed in the inner city and among the migrants from the DRC, but also from Zimbabwe and Malawi. The country of origin with the highest proportion of undocumented migrants is Mozambique followed by Zimbabwe and Malawi. This is reflected in table 10-11 below:

Source: African cities survey Note: (1). Where totals do not add to 100%, it is because of multiple (2) responses

Table 3: Reasons for migrating to South Africa

Reasons given for leaving country of origin

Country of Birth

TotalDRC Mozam-

bique Somalia

Other Non-South

Africans

South Africa

Non-South

Africans Total

Plac

e Con

sider

ed G

oing

For Economic Reasons Percent 31.00% 80.60% 41.90% 77.10% 50.01% 49.80% 55.00%

Escape war Conflict Percent 48.40% 11.90% 93.00% 0.70% 21.40% 31.90% 40.00%

Escape Political Oppression

Percent 1.60% 5 .00% 0.80% 0.60%

Escape Religious Oppression

Percent 26.20% 2.00% 2.70% 14.30% 11.80% 9.50%

Escape ethnic/ Tribal Oppression

Percent 9.30% 1.50% 3.20% 1.30% 7.10% 5.10% 4.40%

Escape Gender/ Sex Persecution

Percent 0.40% 0.5% 1.10% 0.60% 0.50%

Edu. Opportunity Percent 12.90% 35.30% 3.20% 25.50% 7.10% 17.10% 18.60%

Family Reunification Percent 7.70% 12.40% 0.50% 10.50% 28.60% 7.20% 8.10%

Access to Govt Aid Percent 0.70% 0.10%

Access to Churches/ NGO

Percent 0.50% 0.10% 0.10%

Already familiar with RSA

Percent 0.80% 1.00% 1.30% 0.60% 0.70%

Easy Access to Visa/ Immigration

Percent 0.80% 0.50% 1.10% 0.80% 0.60%

Easy Access to third Country Percent 5.60% 0.50% 1.60% 14.30% 3.00% 2.50%

Close to Country of Origin

Percent 0.80% 7.50% 2.60% 2.10%

Other Percent 2.00% 0.40%Total=N Count 248 201 186 153 14 642 802


For South Africans statistics of ‘reasons for leaving for RSA’ refers to leaving community of Origin and for Non-South Africans, statistics refers to leaving from Country of origin/birth.

Table 4: Type of documentation held

Place of living Alexandra Johannesburg Inner cityN 277 546Asylum seeker permit 13% 32%Refugee status 5% 15%Maroon ID 6% 4%Valid visa to be in South Africa 10% 14%South African Identity book 19% 11%Other (undocumented) 56% 35%

Table 5: Type of documentation held by different national groups

Country of birth Zimbabwe Mozambique DRC MalawiN 511 129 62 41Asylum seeker permit 29% 7% 55% 17%Refugee status 9% 3% 39% 20%Maroon ID 2% 9% 8% 7%Valid visa to be in South Africa 11% 13% 13% 22%South African Identity book 12% 22% 2% 17%Other (undocumented) 45% 54% 5% 41%

Given that, as discussed in the previous section, documentation largely shapes migrants entitlements to social protection mechanisms, it is of concern that such large numbers of migrants are undocumented. This undocumented status is particularly true for those living in informal settlements and for those coming from Mozambique and Zimbabwe. Again this suggests that vulnerability might be related both to the migrants’ country of origin as well as the place where they live.

2.5 initial conclusion

The limited data that exists on mobility into South Africa contradicts a number of commonly held assumptions. Most significantly it shows that internal migration is far more significant than cross border migration. This is important as real access to services such as health and education depend on the state being able to accommodate these high levels of, often circular, mobility. The initial demographic data presented also suggests that migrant vulnerability might be more complex than often thought. For example, for the most part, cross border migrants are a well-educated group which could arguably act as a form of social protection. However, as will be discussed in the next section, access to an income is often more closely related to whether one lives in the formal or informal housing sector than migrant status and the extent to which the benefits of education are realised depend on being able to work in the sector for which they are trained.

Perhaps the most striking finding is how many migrants lack access to documentation. As discussed in section one, this has partly due to the nature of migration where the


economic motives of many migrants make them ineligible for documents and partly a result of the bureaucratic inefficiency and corruption. Nevertheless, this renders many migrants outside of the kinds of social protection mechanisms envisaged in section one of this chapter such as pensions, unemployment insurance and so on. This suggests that any meaningful understanding of social protection for migrants in South Africa will have to consider informal mechanisms. Furthermore, when we compare cross border migrants with internal migrants, we see an even more complex picture emerge. For example, internal migrants also appear to migrate for the same reasons and are more likely to live in informal settlements. Furthermore, internal migrants are more likely to be female than cross border migrants and this means a concentration of women in informal settlements. By considering the situation of internal migrants, as we will continue to do in the sections that follow we are able to assess the extent to which being a non-citizen impacts on migrants ability to claim social protection.

The sections that follow will consider what risks migrants face, how they manage these risks and shocks, and the effectiveness of the strategies that they employ.

3. SECtioN 2: MiGrANt VULNErABiLitY: ArE MiGrANtS MorE VULNErABLE thAN SoUth AfriCANS AND to WhAt?

This section considers the range of indicators of vulnerability that we have information on for migrants. As has been emphasised in the above sections, there is a need to compare this to South African vulnerabilities in order to assess the extent to which these can be attributed to migration status.

3.1 income

Tables 7-9 and figure 4 indicate where nationals and non-nationals are employed, their employment status and the number of incomes they have in a family.

Table 6: Employment Status of 16-65 Year Olds by Citizenship (2001)

Percent Nationals Percent Non-NationalsEmployed 33.4 60.1Unemployed 24.1 14.9Not economically active 42.5 25.0



Table 7: Work Status of 16-65 Year Olds by Citizenship (2001)

Percent Nationals Percent Non-nationals Paid employee 89.1 82.0Paid family worker 1.4 1.1Self-employed 7.6 14.8Employer 1.5 1.7Unpaid family worker 0.5 0.4Total 100 100


Table 8: Professions of 16-65 Year Olds by Citizenship (2001)

Percent Nationals Percent Non-NationalsLegislators; senior officials and managers 5.3 6.3Professionals 6.9 8.7Technicians and associate professionals 9.6 5.0Clerks 11.1 4.6Service workers; shop & market sales workers 10.2 9.1Skilled agricultural & fishery workers 2.8 3.5Craft and related trades workers 11.8 20.8Plant and machine operators & assemblers 8.7 10.7Elementary occupations 33.6 31.4Total 100 100


Figure 4: Number of incomes for each migrant group


Cross-Migrant

Internal

Always lived in

0

1

2

3

4

5

6

7

Perc

enta

ge (

%)

0income

1income

2incomes

3incomes

10

20

30

40

50

60

70

Perc

enta

ge (%

)

1income

0income

2incomes

3incomes

Always lived inCross-migrantInternal


The above data shows that migrants are significantly less likely to be unemployed than South Africans. This might partly be due to migrants leaving the city if they are unemployed but nevertheless shows they have high levels of employment. Both South Africans and cross border migrants rely heavily on paid employment although cross border migrants are more likely to be self employed than South Africans. Furthermore, the majority of the households – independently of their migration status – have only one income. However, cross border migrants are the majority among those households with two and three incomes. AT first glance this suggests that cross border migrants may in fact be less vulnerable than their South African counterparts, however, this needs to be broken down to consider a fuller range of vulnerabilities that they face.

Indeed, vulnerability seems to be more closely associated with variables other than migration status. For example, earning money is related to gender (Chi square = 40.45; p = <0.001) and the RENEWAL study showed that female respondents were significantly more likely to report (66%) that they are not currently earning money than male respondents. Earning money is also significantly associated with the type of residence (formal and informal) (Chi square = 10.04; p = 0.0015) that people live in – informal or formal. Among the respondents residing informally, 59% of them are not currently earning any money versus 44% among the respondents residing formally.

In addition to adult migration, FMSP research finds that children as young as seven are migrating alone form neighbouring countries due to the death of their parents, lack of money, or not being in school. Once in the country, children face exploitation by police who illegally send them back over the border and detain them in illegal conditions – such as with adults and for extended periods. Although many children in border towns may have legitimate asylum claims, they lack the resources needed to reach the urban centres where they could apply for asylum. Children as young as seven years old work in exploitative conditions. In a 2007 study by Save The Children near the Zimbabwean border, almost a quarter of those interviewed had no income, while a similar number made money by collecting items for recycling. Farm work (for boys) and domestic work (for girls) were common forms of work. Children who are living in urban centres, however, are more likely than those on the borders to be in school and have access to accommodation and limited NGO support that prevents them entering this kind of work. Although there has been a response from some non-governmental organisations, there has been little effort on the part of the Department of Social Development or other government agencies to address the concerns of unaccompanied minors. Once again, this suggests that whilst Johannesburg based, inner city migrants fare quite well, there are pockets of vulnerability based on age, gender and proximity to the city centre within migrant groups.

3.2 household composition

What is clear is that many cross border migrants migrate without their children. The FMSP Migrant Rights Monitoring Project found that only 15% of those migrants seeking


services had children and the biggest family has 4 children. Given that migrants are between the ages of 30-34, we do not expect that they do not have children, or that they have smaller families than South Africans – rather that they are moving without them. According to the census, the average household size for migrants was smaller than that of South Africans which is also likely to be a result of not migrating with children. This is indicated in the table below:

Table 9: Migration and family size

Place of birth of the head of household Average size of householdBorn in RSA 5.6Born outside RSA 3.5All 5.5

Source: Census, 2001

This is borne out in other studies such as the African Cities Survey where three-quarters of migrants travelled without members of their families – a finding that was consistent across nationalities. Furthermore, there is evidence that migrants who migrate without their children do much better than those who have children. From the census of 2001 we see that significantly more (24.9%) migrants who migrated with their children lived in informal settlements than those who migrated without their children (15.6%). Furthermore, those who migrated without their children tended to earn more (a range of R401-R800 per month compared to R801-1600 per month). This indicates that migration with children is a significant burden to families. It furthermore points to the vulnerability of children who migrate with their parents as well as raising questions about the care of children left behind when parents migrate.

Furthermore, it is significant that, in the African cities survey of 2006 there were more male cross border migrants than female. The sex ratio for cross – border migrants was 0.56 for those born in the Democratic Republic of Congo, 0.32 for those born in Somalia and 1.02 for those from Mozambique. This indicates that, for countries further away from South Africa, it is often a male family member who migrates first. However for those close to South Africa (as in the case of Mozambique) it could be either a man or woman who migrates. Also, migrants who had been in South Africa for longer were more likely to have family members with them, indicating that a family is often reunited over time. This indicates the resources required for travelling long distances with children. There is a significant gap in understanding the conditions facing family members left behind and there are many questions still unanswered about the impact of parent’s migration on children. For example, it is possible that, through remittances, children of migrant parents may be materially better off but that they lack adult attention.13

13 See Edillon RG “The Effects of Parent’s Migration on the Rights of Children Left Behind” (Asia Pacific Policy Center, UNICEF 2008).


The migration of children without parents, however, takes on a very different characteristic. According to the unaccompanied minors study of 2007, the majority of the children (76%) interviewed on the Musina and Komatipoort border were boys. This is reflected in table 1 below:

Table 10: Gender of unaccompanied minors

Frequency PercentMale 99 76.2Female 31 23.8Total 130 100.0

Source: unaccompanied minors study

One possible reason for this is that girls may be employed in domestic work or other privatised forms of work such as sex work which making them less easy to access with a survey. Past research, as well as interviews with service providers, suggests that girls may be sent by families to be employed as domestic workers.

3.3 food security

As shown in figure 5 below, cross-border migrants are the most likely to report that their food security has improved since moving to Johannesburg. Internal South African migrants are the least likely to report that their food security is now better.

62


Figure 5: Food security for migrants and South Africans

YesIt is better now It is worse now

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Do you think your food access changed

71% of cross-border migrantsreport their food security isnow better


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44% of those who have alwayslived in JHB report their foodsecurity is now better.


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South African Migrants

40% of South African internalmigrants report their foodsecurity is now better.


.


These results suggest that migration is itself a livelihood strategy and that it is one that is more successful for cross border migrants than for internal migrants. In light of previous discussions this may well be related to the smaller number of dependents this group has and their relatively high levels of education.

Respondents report several shocks affecting the households which result in food shortages. The figure below shows what some of these shocks are. Again these were not significantly different for migrants and non-migrants but rather whether one lived in the inner city or informal settlement was most likely to affect the kinds of shocks one faced.

Figure 6: Shocks leading to food shortages


Both residents of formal and informal areas report having gone through particular times in the past when food security was poor, but this is more pronounced among residents of the informal settlement than those residing in formal areas (68% and 55% respectively, not shown here). As observed (Figure 6 above) unreliable income is the most recurrent cause of food shortages for households in both areas of residency, creating a persistent stress that is more acute in the informal settlement. A group of respondents in the informal sector also declare that food security is always poor. As an ongoing pressure on the household lack of food access for these household has turned into a stressor.

Households in the inner city (mostly cross-border migrants) report the loss of a job and the period when they had just arrived in Johannesburg as the main shocks impacting their food access. However this shock is temporary; over time cross-border migrants declare their food access has improved since moving to Johannesburg. The contrary seems to happen to internal migrants who do not report arrival to Johannesburg as affecting their food access. The majority of the informal settlement residents report their food security has not improved since moving to Johannesburg.

Loss of job Death in theFamily

Just arrived inJHB

Unreliableincome

Food security is always poor

Reasons for food shortage

Informal

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3.4 housing and living conditions

In spite of the above findings, which tend to show that cross border migrants fair quite well in the city, we see significant differences between migrants and South Africans with regard to the conditions under which they secure housing. In particular, cross border migrants rely heavily on private rental accommodation with very few accessing state housing. Furthermore, migrants typically pay more than South Africans for their housing and have insecure tenure. Migrant households generally have more members than South African households and they tend to move more often. This is shown in the tables below:

Table 11: Multi-household dwellings

Is this dwellingmulti-

household?

Country of birth Country of birth and place of living

South Africa Other

South Africa OtherAlexandra Inner-City Alexandra Inner-City

Yes 16.2 40.8 2.9 36.6 5.4 58.8No 83.8 59.2 97.1 63.5 94.6 41.2Total 100.0 100.0 100.0 100.0 100.0 100.0

Source: uNOCHA vulnerability study

Table 12: number of households sharing a dwelling

How many households live in this dwelling?


South Africa Other


1 4.8 12.4 0.0 12.2 0.0 18.72 5.1 11.5 2.1 9.7 3.3 15.83 2.8 8.1 0.7 6.1 1.1 11.74 1.4 4.4 0.1 3.4 1.1 6.05 0.9 1.5 0.0 2.3 0.0 2.26 0.4 1.0 0.0 1.1 0.0 1.57 0.3 0.6 0.0 0.6 0.0 0.98 0.1 0.7 0.0 0.2 0.0 1.19 0.1 0.5 0.0 0.2 0.0 0.710 0.1 0.0 0.0 0.2 0.0 0.011 0.0 0.1 0.0 0.0 0.0 0.213 0.1 0.0 0.0 0.2 0.0 0.026 0.1 0.0 0.0 0.2 0.0 0.0dk/ra 0.1 0.0 0.0 0.2 0.0 0.0question not asked 83.8 59.2 97.1 63.5 94.6 41.2Total 100.0 100.0 100.0 100.0 100.0 100.0

Source: uNOCHA vulnerability Study


The above tables suggest that migrants (40.8%) are much more likely to share a dwelling with several other families than South Africans (16.2%). This is particularly true of those living in the inner city. This may well be related to the higher rentals in the inner city as well as the slightly larger dwellings in this area. These tables show that migrants typically share their dwelling with 1-4 other families.

Table 13: Length of time in current residence

How long have you lived in your current

location?


South Africa Other


Less than 1 week 0.2 0.2 0.3 0.0 0.0 0.41 wk – 1 month 1.1 1.1 1.2 0.8 1.1 1.1>1 month, <3 months 2.2 5.2 1.9 2.5 3.6 6.0>3 months, <6 months 1.7 6.3 1.4 2.3 2.2 8.4

>6 months, <1 year 3.0 8.3 2.2 4.2 6.5 9.2>1 year, <2 years 6.0 12.4 3.4 9.9 8.3 14.5>2 years, <3 years 5.6 11.3 4.9 6.5 9.8 12.1>3 years, <4 years 5.8 9.1 5.4 6.5 8.7 9.3>4 years, <5 years 5.6 7.3 4.8 6.7 6.5 7.7>5 years, <6 years 7.1 5.7 6.3 8.2 5.4 5.9>6 years, <7 years 4.1 3.4 3.3 5.3 2.2 4.0>7 years, <8years 3.3 2.4 2.7 4.2 2.5 2.4>8 years, <9 years 3.3 2.9 2.9 4.0 2.2 3.3>9 years, <10 years 4.0 6.0 4.0 4.0 9.4 4.2>10 years 45.2 17.7 52.8 33.6 30.7 11.2dk/ra 0.8 0.2 0.8 0.8 0.4 0.2question not asked 1.2 0.4 1.7 0.4 0.7 0.2Total 100.0 100.0 100.0 100.0 100.0 100.0


This data shows that migrants are more likely to live in conditions of overcrowding and are more likely to share their accommodation with other families, they are also more mobile and this is likely to be linked to their reliance on rental accommodation and insecure tenure.

3.5 health access: A case study of hiV/AiDS

Another area where there are substantial differences between migrants and non-migrants regards health care access. Whilst migrants have a range of health needs, HIV/AIDS provides a useful case study firstly because all SADC countries have national plans of action for HIV and thus a regional response should be possible and also because it tests the definition of ‘life saving emergency health care’ that the South African constitution guarantees for all regardless of their migration status.


Exploring this further, knowledge of where to test and access to treatment as well as regular testing for HIV can be considered resources migrants have to face the potential impacts of HIV/AIDS. There is a strong and significant association between the knowledge of where free ART is available and migration status (Chi square = 7.64, p = 0.022). Internal South African migrants tend to know more about free ART than the other groups, in second place are cross-border migrants. The group who knows the least is represented by respondents who have always lived in Johannesburg.

Figure 7: Knowledge of where ART is available


Knowledge about free access to ART and of where to test is also highly and significantly associated with gender, women tend to have more information about these matters than men (56% of female respondents know where to get free ART compared to just 27% of males, not shown here).

Respondents in the informal settlement (mainly internal migrants) are more likely to know where to test for HIV than respondents in the inner city. A total of 47% of South African respondents know where to be test compared to just 34% of cross-border migrants. A total of 66% of cross-border migrants do not know where to get treatment.

Knowledge of treatment for HIV– ART – is not significantly associated with the length of time residing in Johannesburg (Wilcoxon Kruskall-Wallis test, Chi square = 3.52; p = 0.06) as is shown in the graph below:

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Q 254 Do you know that free ART is available?Yes No

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Always JHB

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q 254 Do you know that free ART is available?

NA

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Figure 8: Length of stay in Johannesburg (Yrs) versus the knowledge of where to get treatment for HIV/AIDS


Despite South African mass media and communication programmes surrounding HIV, these communication strategies do not appear to be having a positive impact upon survey respondents. A preventive behaviour includes regular testing for HIV/AIDS therefore testing can be considered a resource against the impact of the disease.

Just over 50% of all survey respondents in the RENEWAL study report ever having tested for HIV; 60% of these, report testing more than once. Testing for HIV is significantly a gender related factor (Chi square = 62.4, p< 0.0001). 67% of women have been tested against 31% of men and this difference is largely accounted for by women being tested during pregnancy.14

14 The 2005 HSRC National Prevalence Survey found that 30.3% of all respondents had ever tested for HIV; 30.9% of female respondents compared to 26.4% of male respondents (no significance difference) (Shisana O, Rehle T, Simbayi LC, Parker W, Zuma K, Bhana A, et al South African National HIV Prevalence, HIV Incidence, Behaviour and Communication Survey, 2005 (Human Sciences Research Council 2005).

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Figure 9: Testing for HIV among male and female respondents


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Figure 10: Reasons for testing among male and female respondents


In addition, South African respondents (both migrants and non-migrants) are significantly more likely to report ever having tested than cross-border migrants (Chi square = 8.32 p = 0.016). This, as shown in Figure 11, is similar for both internal migrants and non-migrants.

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8027% of male respondents reported testing for HIV because they were sick

8% of female respondents reported testing for HIV because they were sick

58% of female respondents reported testing for HIV because they were pregnant

30% of female respondents reported testing because they wanted to know their status (Associated with sickness)status

70% of male respondents reported testing because they wanted to know their status (Associated with sickness)I was sick

I was sick

I was pregnant

I was pregnant

I wanted to know

my status

I wanted to know

my status

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What was the reason for testing for HIV Male Respondents

What was the reason for testing for HIV Female Respondents

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Figure 11: Migration status versus ever having tested for HIV


Testing for HIV is also significantly related to the type of settlement (Chi square = 18.4, p< 0.0001) and to migration status (Chi square = 8.32, p= 0.015). Respondents in the informal settlement and South African internal migrants tend to have tested for HIV/AIDS while 58% of cross-border migrants have never been tested for HIV. This may be an indicator if general lack of health care access in the informal settlement and the high costs of transport to HIV testing sites.

3.6 Experiences of violence

As with health access, experiences of violence is another area where cross border migrants appear to be particularly vulnerable. The table below, for example, shows the percentage of non-nationals that have been displaced from their homes as a result of violence and the table below it shows the number of non-nationals that have been threatened with violence in the UNOCHA vulnerability study:

Hav

e you

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sted

for H

IV?

1.00

0.75

0.50

0.25

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NARESP Final

South African Foreign Always in JHB

Yes

No


Table 14: Displacement as a result of violence

Were you displaced by violence or

threats of violence?


South Africa Other


Yes 1.7 16.7 2.7 0.2 45.9 1.8No 2.9 2.7 3.3 2.3 4.3 1.8dk/ra 0.0 0.2 0.0 0.0 0.4 0.2question not asked 95.3 80.4 93.8 97.5 49.5 96.2240 0.1 0.0 0.1 0.0 0.0 0.0Total 100.0 100.0 100.0 100.0 100.0 100.0


Table 15: Threats of violence

Since you came to live in Johannesburg

have you or your family been

threatened with violence?


South Africa Other

South Africa Other

Alexandra Inner-City Alexandra Inner-City

Yes 7.1 28.0 8.1 5.5 48.4 17.6No 92.7 71.7 91.6 94.3 50.9 82.2question not asked 0.3 0.4 0.3 0.2 0.7 0.2Total 100.0 100.0 100.0 100.0 100.0 100.0


These tables show that cross border migrants are more likely to be threatened with violence and displaced as a result of it than their South African counterparts. Beyond being threatened with displacement and violence, cross border migrants were more likely to report being victims of crime than South Africans were as is seen in the table below:

Table 16: Experiences of crime

Have you or a member of your

family been a victim of crime?


South Africa Other


Yes 26.3 27.6 25.0 28.4 27.4 27.7No 73.5 71.8 74.9 71.4 71.8 71.8dk/ra 0.1 0.4 0.1 0.0 0.4 0.4question not asked 0.1 0.2 0.0 0.2 0.4 0.2Total 100.0 100.0 100.0 100.0 100.0 100.0


In spite of being victimised far more than South Africans, cross border migrants nevertheless were more likely to have been stopped by police and other law enforcement officials.


5341861345

82575

9660090692

157084

180713

176351181286

183861

145575

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Table 17: Have you ever been stopped by the police?

Have you ever been stopped by the

police?


South Africa Other


Yes 20.8 54.9 16.3 27.5 51.3 56.8No 78.9 44.8 83.4 72.1 48.4 43.05 0.1 0.0 0.0 0.2 0.0 0.0dk/ra 0.1 0.0 0.1 0.0 0.0 0.0question not asked 0.2 0.2 0.1 0.2 0.4 0.2Total 100.0 100.0 100.0 100.0 100.0 100.0


For 50% of those who had been stopped by police, the reason for this was to have their immigration status checked. Under the 2002 Immigration Act, police or immigration officers may remand people to custody without a warrant if they have reasonable grounds to believe they are not entitled to be in the Republic of South Africa. Immigration officers are also empowered to arrest illegal foreigners and deport them. In the past few years there has a significant increase in the number of deportations from South Africa as seen in the figure below.

Figure 12: Deportations from South Africa 1990-2006

Source: Department of Home Affairs Data reproduced in CORMSA 2008

The main reason for the rise in the number of deportations has been the heightened activity of the police in immigration enforcement. The majority of those deported in


most recent years are people arrested soon after crossing the Zimbabwe-South Africa. These regularly include would-be asylum seekers and unaccompanied minors. Some are returned to an International Organisation for Migration centre in Musina, Zimbabwe. The majority are simply left on the Zimbabwean side of the border. The other primary groups being deported include those from Mozambique (the majority until 2004) and Lesotho. Given the low numbers of migrants with documents, as discussed in the previous section, this represents a significant source of vulnerability for migrants who, when deported, are likely to lose their source of income and their accommodation. This is particularly important given that many migrants cited the period of first arriving in the city as one where food was in greatest shortage. Having to restart livelihoods after deportation is therefore a significant source of vulnerability.

3.7 initial conclusions

This section highlights the ways in which migrants, in particular, cross border migrants are vulnerable. Surprisingly, cross border migrants tend to have more family incomes, to have higher incomes and are more likely to be employed. This challenges many existing assumptions about migrants’ ability to obtain work. Whilst this work is often in sectors that are poorly protected, insecure and often exploitative, this is also true for South Africans who tend to work in the same sectors. Indeed, the above analysis has shown that gender and place are equally significant in trying to understand vulnerability as migration status. In addition, cross border migrants tend to migrate without dependents and this might explain their better overall economic status. However, we should not automatically assume that migrants are better off than South Africans. An internationally observed trend is that migrants sometimes appear healthier than host populations because when they are ill they return home rather than remaining in the country of destination. So too, migrants who are unable to earn an income may not remain in a city like Johannesburg and thus it may appear in surveys that migrants are less likely to be unemployed. Either way, cross border migrants seem able to navigate the city and secure a livelihood fairly successfully. In addition to fairing well economically, migrants tend to report that their access to food is better after migration than it was before.

These findings indicate that we need to consider migration itself as a coping strategy. In times of shock or poverty it is likely that having a migrant member of a family might be a way to minimise the effects of this shock through remittances or access to new markets. Because of this indication this will be explored further in the next section.

Nevertheless there are ways in which migrants do seem more vulnerable than South Africans. In particular their knowledge of HIV/AIDS services and access to these services is of concern. Above all else, migrants are victims of violence induced displacement and crime. Although they report higher rates of victimisation than South Africans, migrants are in fact more likely than South Africans to be stopped by the police and the data presented in this section suggests that migrants face extensive police harassment. In addition, the


If you were very sick and unable to work, what would you want to do

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increasing emphasis on migration policing and the documentation status of police means that one of the greatest livelihood risks that migrants face is deportation. Thus the state is often the source of vulnerability for migrants and an approach to social protection that emphasises the role of the state is unlikely to be successful.

Furthermore, when the general data is broken down by age and gender, we see that young female migrants are more likely to be located in informal settlements and face far greater vulnerability than those living in the inner city.

4. SECtioN 3: hoW Do MiGrANtS CopE With ShoCKS?

Given the vulnerability described above, this section moves on to consider in more detail how migrants cope with these vulnerabilities.

4.1 Coping with illness

For all respondents in the RENEWAL study, a central way of coping with illness is to return home. There is not a significant relationship between migration status and the choice to go back home if the respondent is too sick to work (Chi square = 5.27; p = 0.021) and the same number of South Africans and foreigners indicated that they would return home if too ill to work.

Figure 13: What people would do if they were too sick to work?


This challenges assumptions that when people are sick, they always migrate to the city in order to access care and support. It appears that whilst health and migration are linked, these findings suggest that they are linked in the direction of urban to rural rather than rural to urban.


It is interesting to note that less than 5% of survey respondents report ever having hosted a guest from home because they were sick suggesting that the city does not play a role in supporting ill family members from rural areas or outside South Africa. This suggests a heavy reliance on informal coping strategies as well as suggesting that the burden of health care might well reside in the migrants country of origin or in the rural areas for internal migrants. These are often areas with fewer health care resources than Johannesburg.

4.2 Coping with food insecurity and poverty

When asked how they coped in times of food insecurity, respondents in the RENEWAL study emphasised their inability to get help from any source. In other words, survey respondents were most likely to report that they did not loan food (77%) and that they did not borrow food (84%). It is important to reflect that the numbers of households reporting that they would loan or borrow food is highest within the informal settlement (40% and 29% respectively), where residents are more likely to report that their food access has worsened. It is also important to notice residents in the informal settlement have lived there the longest and that their sense of being part of their neighbourhood is very strong. However, for the most part, informal mechanisms such as social networks are not a reliable strategy for accessing food. As Figure 15 below shows, the majority of respondents report that they rely on family members if they do not have money for food. However, respondents appeared reluctant to admit to direct ‘borrowing’ of food.


B s

y g f y

Figure 14: What would you do if you had no food?


Similarly, strategies for coping with a lack of money were informal and relied on networks although many people nevertheless reported that they have few of these networks. The tables below show where people would go if they wanted to borrow R500:


Table 18: Where would you go if you needed to borrow R500?

South Africa Non-South Africans TotalDK/RA 2.10% 6.80%My boss or employer 7.40% 3.10%A union 0.30%Court of law/police 0.50% 0.20%NGO/aid organisation (domestic) 0.20%NGO/aid organisation (international) 0.50% 0.50%No place to complain 32.30% 29.20%Friend 11.60% 35.60%Religious group 1.20%Travel agent 0.20%Money lender 4.20% 0.50%Bank 20.10% 1.20%Organisation of Refugees from Country of Origin 0.20%

Nowhere/ There is no place 19.60% 19.40%Other 1.60% 1.40%Total=N 189 643

Source: African Cities Survey

This table indicates that many South Africans and foreigners indicated that they had no place to borrow money. However, foreigners were far more likely to rely on friends whilst South Africans were more likely to reply on formal institutions such as banks and moneylenders. Surprisingly, neither group indicated a reliance on NGOs. When asked where they would go to borrow R5000, the responses were almost identical with more people indicating that there was no place to go.

4.3 Coping with crime and violence

As mentioned in the previous section, migrants face high levels of violence in South Africa. In this section we consider how they cope with this violence. Table 25 below indicates what South Africans and migrants say they would do if someone broke into their home and stole from them:


Table 19: Would you go to the police if someone stole from you?

If someone broke into your residence and stole from you

would you go to the police?


South Africa Other

South Africa Other

Alexandra Inner-City Alexandra Inner-City

Yes 97.0 89.2 96.0 98.5 82.0 92.9No 2.9 10.2 3.8 1.5 17.7 6.4dk/ra 0.1 0.4 0.1 0.0 0.0 0.6question not asked 0.0 0.2 0.0 0.0 0.4 0.2Total 100.0 100.0 100.0 100.0 100.0 100.0


As this table indicates a higher number of migrants indicated that they would not go to the police in this situation. Again this is shaped by place of residence where those living in the informal settlement of Alexandra are least likely to go to the police in this situation. For most respondents this was because they felt that the police would not care. The table below indicates respondents’ answers when asked what they would do if they had trouble with the police. It shows that by far the majority of non-South Africans would go to friends whilst South Africans would be more likely to rely on another government agency. Nevertheless high numbers of South Africans felt there was no place to complain if they experienced trouble with the police.

Table 20: Where would you go if you had trouble with the police?

South Africa Non-South Africans

DK/RA 10.60% 7.80%

My boss or employer 1.60%

Political Party 0.20%

Court of law/police 5.30% 2.30%

Ministry or government agency 12.20% 2.50%

NGO/aid organisation (domestic) 1.10% 3.60%

NGO/aid organisation (international) 1.90%

No place to complain 38.10% 17.60%

Friend 13.20% 42.10%

Newspaper (letter to editor) 0.50%

Religious group 2.10% 4.00%

Lawyer (private) 2.00%

Media (e.g., newspaper, television) 0.50%

Travel agent 2.10%


South Africa Non-South Africans

Bank 0.30%

Organisation of Refugees 1.90%

Nowhere/ 9.00% 11.00%

Other 4.80% 1.90%

Total 189 643


Thus, in response to South Africa’s high levels of crime and the disproportionate targeting of foreigners, people report few coping mechanisms. Whilst they were most likely to report to police, many foreign migrants indicated that they would not report crime and would rely instead on friends and family.

4.4 Migration as a coping strategy

The evidence presented so far indicates that migration itself is likely to be a coping strategy. This is evidenced in the remittances that migrants send home. The table below shows the numbers of migrants who regularly send money home and where they are from:

Table 21: Percentage of migrants who regularly send money back home

DRC Mozambique Somalia Non-SA South Africans

Yes 33.10% 51.50% 55.90% 45.50% 47.90%

No 66.90% 48.50% 44.10% 54.50% 52.10%

N= 251 200 186 644 190


qualitative research indicates that migrants experience a great deal of pressure to remit to their families at home. Nevertheless the numbers of migrants remitting varies by country of origin. This may reflect the reasons for migration. As discussed earlier, those from the DRC are most likely to be asylum seekers whereas those from Mozambique are more likely to have migrated for economic reasons. This may explain some of the variation in remitting. However, regardless of the intention, this report indicates that migration is a coping strategy that can be quite successful but which carries with it a number of risks for the migrant such as poor health access and increased exposure to violence.

4.5 initial conclusions

This section indicates that many urban residents have few coping mechanisms. However, what is striking is the extent to which the coping strategies of migrants are more likely to be informal and rest heavily with friends and family members. Coping with food


insecurity and periods of poverty was heavily reliant on friends and family. However, when it came to problems with police and crime, migrants were likely to report that there was no solution to this. This is particularly concerning in light of the findings in section two which indicate that the state is often the source of exploitation and violence against migrants. Furthermore, the high levels of crime and violence perpetrated against migrants means their unwillingness to engage with the police has an impact on the safety and wellbeing of all residents of the city.

The evidence presented in the last two sections suggests that migration is itself a coping strategy that we know little about. Indeed, it appears to be a strategy that is more successful for some migrant groups than others. For example, those that find themselves living in informal settlement appear to fare worse on a number of indicators such as health, poverty, violence etc. Those who move to the inner city on the other hand tend to cope fairly well. However for certain groups such as female migrants to informal settlements or unaccompanied minors migration is not a coping strategy that is as successful.

These findings nevertheless indicate that the state is currently not a solution to the social protection needs of migrants. Rather, coping with shocks and stressors is entirely informal and this presents a range of challenges for how social protection can be promoted among migrant communities. These will be discussed in more detail in the conclusion.

5. SECtioN 4: CoNCLUSioNS

Perhaps the most important finding from this secondary research is that the state’s role in the provision of social protection is mediated by migration status. This suggests the need to think about social protection beyond a narrow focus on public interventions. As mentioned in section one this does risk casting the net too wide and potentially creating the space for government to withdraw even further from its responsibility to migrant communities. However, we cannot ignore the fact that migrant communities are creating their own informal systems of social protection and these systems need to be better understood and supported.

Indeed, this chapter has shown that the state is often the greatest threat to migrant livelihoods. This is through frequent deportations, police harassment and the denial of services including health and safety services. Much of this can be traced to the current migration control ethos and the fact that the nature of migration patterns in the region mean most migrants will continue to move without documents.

However, it is not only the state that fails to offer any form of social protection to migrants. Indeed, migrant were no more likely to rely on loans, banks and savings schemes that might allow them to invest in ways that offset the effects of a shock. Rather all efforts at managing such events takes place informally through migrant networks.

This chapter has equally shown, however, that very often these informal mechanisms of coping work. The overview provided of migrants’ vulnerability indicates that there are


several indicators in which certain migrants (often men living in the inner city) do as well if not better than South Africans. This includes their ability to obtain employment. However, there are some ways in which migrants are clearly more vulnerable than South Africans. The most striking example is that of exposure to violence. However, health access equally gives cause for concern. What is perhaps most significant about these vulnerabilities is that both safety and health are services that, at their most basic level, migrants are entitled to regardless of their documentation status. This suggests that the simple provision of documents is unlikely to be sufficient to change migrants’ access to social protection. Rather the lack of access to these needs appears to be arbitrary and based on a desire by South Africans in general as well as specific service providers to create and environment hostile to migrants.

This raises a number of concerns about rights-based approaches to social protection. Firstly, the reliance on citizenship in much of this literature is likely to mean that in practice – even if not in theory – this is used to further deny social protection for migrants. Furthermore, the hostility shown to migrants, witnessed in the 2008 xenophobic attacks, indicates that any approach to social protection that is seen to benefit migrants is likely to face resistance from South Africans and is likely to face barriers to its implementation – as we have seen with emergency health care. Given how unpopular rights arguments are in South Africa a discourse that emphasises the importance of incorporating migrants for both South Africans and migrants is more likely to be effective.

It should also be noted that there is a distinct lack of data on social protection of migrants and so the conclusions of this study need to be read in that light. Firstly, almost all the data presented speaks to the Gauteng Province. Whilst this is appropriate given the migration flows into this province, it does leave gaps about areas that are showing increasing migration. In addition, these cross sectional studies fail to give the temporal picture needed to understand the periods of vulnerability and resilience in the lives of migrants. Finally most of these studies have been conducted not as social protection studies but for other purposes and so the questions asked may not always reflect the priorities of a social protection framework. Nevertheless, they paint an important picture about the ways that migration affects vulnerability and how migrants cope with the stressors and shocks they face as migrants.

195qUALitAtiVE StUDY of MALAWiAN MiGrANtS iN JohANNESBUrG

Appendix 1

qUALitAtiVE StUDY of MALAWiAN MiGrANtS

iN JohANNESBUrG1

1. iNtroDUCtioN

1.1 Background and objectives

South Africa, as Africa’s largest economy, is the foremost migrant receiving country in Southern Africa and migration to South Africa has been described as a well-established household poverty reduction strategy.2 Thus many people from within the Southern African region migrate to South Africa in the hope of getting a better livelihood for themselves and their families. Consequently, there is a substantial population of migrants including Malawians in South Africa. Migrants from Mozambique, Zimbabwe, Lesotho, and Malawi are said to comprise the majority of undocumented or irregular migrants in South Africa, with their population estimated at between 500,000 – 1 million.3 In addition to the undocumented or irregular migrants, there are also those migrants who are legally resident in the country.

The main objective of this study is to interrogate the social protection strategies of Malawian migrants in the city of Johannesburg, with a focus on informal social protection and avenues to formal social provisioning. The study explores the way that migrants

1 This is a report of the findings of a study on ‘Social protection for Malawian Migrants in Johannesburg: Access and Exclusion’ that was conducted in February 2009 by Mr Redson Kapindu (LLB (with Honours), University of Malawi (1999); Diploma in International Human Rights, Lund University, Sweden (2002); LLM Human Rights and Democratisation in Africa, University of Pretoria (2004); PhD Candidate, Oliver Schreiner School of Law, University of the Witwatersrand. Lecturer at the Department of Practical Business Law, University of Johannesburg. He is also the Deputy Director at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC).

2 See Bloch A Gaps in Protection: undocumented Zimbabwean Migrants in South Africa, Forced Migration Studies Programme (Migration Studies Working Paper Series No.38).

3 See Crush J ‘South Africa: Policy in the Face of Xenophobia’ in MPI Country Profiles (2008), <http://www.migrationinformation.org/Profiles/display.cfm?id=689> (accessed on 12 November 2008). See also Goodwin-Gill G ‘International and National Responses to the Challenges of Mass Forced Displacement’ in Handmaker J et al (eds.) Advancing Refugee Protection in South Africa (Berghahn Books 2008) at 33, where he states that a reasonable estimate of migrants in South Africa is in the range of 1 to 2 percent of the total population (i.e. between 500,000 – 1 million).


interact with and are excluded from, social protection provisions. In this process, the study also draws a contrast between the social protection and provisioning experiences for Malawian migrants in South Africa as compared with their experiences in Malawi; focusing on both formal as well as informal avenues.

The study forms part of a broader research project whose main objective is to enhance the understanding of informal and formal social protection instruments and strategies of intra-SADC migrants. This broader project also seeks to provide inputs into a regional framework for the harmonisation and coordination of social security in the SADC region. According to Article 2(1)(e) of the Charter of Fundamental Social Rights in SADC, one of the Charter’s objectives is to promote the establishment and harmonisation of social security schemes in the SADC region. It is hoped that a better understanding of these issues will help identify shortcomings in the social protection of migrants from sub-Saharan Africa and elsewhere and suggest policies to address these shortcomings. The desired out-come of the overall research project is therefore a clear policy message on how to improve the social protection of international migrants in the SADC region.

2. rESEArCh qUEStioNS

The principal research question in this study is: how do migrants deal with the various socio-economic risks and vulnerabilities associated with the status of an immigrant in South Africa?

In particular, the study interrogates the following questions:

What are the social protection exclusions and inclusions facing Malawian immigrants ��in Johannesburg?How does their social protection situation in South Africa compare to their experience ��in Malawi?In the event of exclusion, what social protection avenues and strategies do they have in ��Johannesburg? Is their migration to South Africa in itself a social protection strategy?��

Generally, how do Malawian migrants compare their Malawian and South African ��experiences in respect of their living standards and general level of socio-economic vulnerabilities and risks?

This report sets out to address these questions following a survey involving 44 Malawians living in various parts of Johannesburg that was conducted in the month of February 2009.

3. MEthoDoLoGY

The study adopts descriptive, analytical, comparative and prescriptive approaches. The descriptive approach entails a narration and illustration of the survey findings. This is


blended with an analysis of the findings, hence the analytical approach. The comparative approach in this study primarily entails a comparison of the migrants’ South African and Malawian experiences; but it also draws comparisons in passing, with experiences from elsewhere in the world; as well as comparison with findings of previous studies on related subject matters. The study is also prescriptive, in so far as it provides a number of recommendations aimed at engendering improvement in the effectiveness, efficiency and justness of the social protection regime for migrants in South Africa. The study is informed by primary, secondary as well as tertiary sources.

The method of information gathering involved a combination of the administration of questionnaires, holding of semi-structured interviews and desk literature review. The flavour of the report largely reflects legal scholarship on the subject, albeit informed by cross-disciplinary concepts.

A deliberate effort was made to strike a gender balance during the administration of questionnaires and holding of interviews; but for reasons that might probably be the subject of inquiry in another study, the majority of women were either reluctant or completely rejected to be involved in the exercise. An effort was also made to identify Malawians resident in various parts of Johannesburg. Further, there was a deliberate effort to identify Malawians with varying legal residence statuses, including those with work permits, study permits, asylum seekers, refugees as well as those on expired visitors permits. The survey also targeted Malawians of various age groups. It is hoped that this spread of variables should help ensure that the findings of the report, albeit with a relatively small sample, are fairly representative of the social protection situation of Malawians living in Johannesburg, with a focus on the lower income strata of that community.

4. DEfiNitioN of SoCiAL protECtioN

In this section, a working definition of social protection for purposes of the study is adopted. A good starting point for an interrogation of the meaning of social protection is to examine the import of social security that is a more widely used term in various national and international human rights instruments. A definition provided by the International Labour Organisation (ILO) is widely adopted. The ILO has described social security as:

the protection which society provides for its members, through a series of public measures, against the economic and social distress that otherwise will be covered by the stoppage or reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age, death, provision of medical care and provision of subsidies for families with children.4

With regard to developing countries, the ILO has observed that the pragmatic policy paradigm that is emerging from the policy development work recommends that countries which have not yet achieved universal or widespread coverage should first aim to put in

4 International Labour Organization Social Security Principles (ILO 1998) 8.


place a basic and modest set of social security guarantees, which could be called a basic ‘social security package’, for all residents in a country. These should include:

access to basic and essential health care;��

income security for children, facilitating access to nutrition, education and care;��

some social assistance to poor or unemployed persons; and��

income security through basic pensions for old or disabled persons.�� 5

The ILO concludes that “[t]his is the launching platform for a further social security development process that provides greater security when the “fiscal space” of governments increases as economies continue to develop.”6

In South Africa, the White Paper for Social Welfare has provided a definition, broadly similar to that of the ILO, albeit with some conceptual differences. It defines social security as entailing:

Policies which ensure that all people have adequate economic and social protection during unemployment, ill health, maternity, child rearing, widowhood, disability and old age, by means of contributory and non-contributory schemes for providing for their basic needs. State social assistance (grants) includes the following four categories of benefits: those associated with old age, disability, child and family care, and relief for the poor.7 Whilst the ILO definition is limited to public measures, the South African White Paper, by referring to contributory and non-contributory schemes, proposes a definition that implies both public as well as private measures.8

Dekker makes reference to another form of social security, constituted by survival strategies adopted by those that are excluded from official social security schemes, both public as well as private.9 She states that informal social security has only recently been identified in South Africa as a new “strand” to the traditional concept of social security.10 She goes on to state that:

Informal social security arrangements rely heavily on principles of reciprocity and solidarity. Such social security does not only manifest itself in the form of monetary transfers, but can also assume the form of support and services unique to a particular group or community. Informal social security is always delivered in a specific context

5 See ILO Committee on Employment and Social Policy Social security standards and the ILO campaign for the extension of social security http://www.GB303 ESP_3_[2008-10-0169-1]-En.doc (ILO 2008) par 14.

6 ibid.7 See Department of Welfare, White paper for social welfare: principles, guidelines, recommendations,

proposed policies and programmes for developmental social welfare in South Africa, <http://www.welfare.gov.za/documents/1997/wp.htm> (accessed on 12 March 2009).

8 See Swart M “Social Security” (Chapter 56D) in Woolman S et al Constitutional Law of South Africa (2nd Edition, Original Service 07-06) Cape Town, Juta, 2006.

9 Dekker AH Informal Social Security: A Legal Analysis (LLD Thesis – university of South Africa 2005) 6.10 ibid.


in which people have something in common, reflecting the principles of solidarity (ubuntu) and reciprocity. The most common examples of informal social security mechanisms in South Africa are stokvels and burial societies.11

Thus Dekker urges that informal social security can manifest itself in the form of neighbourhood-based (i.e. mutual aid schemes developed among people within a specific community) or kinship-based social security. Olivier et al seem to provide an even clearer and more elaborate definition of informal social security, stating that “[i]nformal social security arrangements are those self-organised informal safety-nets which are based on membership of a particular social group or community, including, but not limited to, family, kinship, age group, neighbourhood, profession, nationality, ethnic group, and so forth.”12

It has been said that underpinning the concept of informal social security in sub-Saharan Africa are African traditional values such as ubuntu or umunthu (a common Bantu term) and harambee or umodzi (the term expressed in Kiswahili and Chichewa respectively). The value of ubuntu received judicial expression by the Constitutional Court in the case of the State v Makwanyane and Others,13 where Langa J, among other things, stated that the value of ubuntu:

... is of some relevance to the values we need to uphold. It is a culture which places emphasis on community and on the interdependence of members of the community. It recognizes a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from members of the community such person happens to be part of …. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.14

The value of harambee on the other hand literally means ‘all pull together’ in Swahili.15 It is said to signify coming together relationally and facing life collectively rather than alone, recognizing the power of one but also the power of the collective in easing individual burdens.16 Thus Olivier observes that these African values, which are all about solidarity, collective responsibility, compassion, equality, unity, self-determination, human respect and human dignity, form the basis of closely interlaced communities that are discernible

11 ibid.12 See Olivier MP et al ‘Formulating an Integrated Social Security Response – Perspectives on Developing

Links between Informal and Formal Social Security in the SADC Region’, paper presented at the EGDI and UNU-WIDER Conference on the theme unlocking Human Potential: Linking the Informal and Formal Sectors 17-18 September 2004, Helsinki, Finland.

13 1995 3 SA 391 (CC).14 ibid par 224.15 See Harambee http://www.en.wikipedia.org/wiki/Harambee (accessed on 1 April 2009).16 See Kabiza.com, Harambee – Pulling Together, http://www.kabiza.com/HarambeePulling-together-

African-Style.htm (accessed on 1 April 2009).


in the social, political and economic activities of Africans.17 The idea of informal social protection, including social security, lies at the core of this study.

Dekker, however, goes on to caution against over-romanticising informal social security mechanisms in South Africa, stating that the system is imperfect and that, although it provides protection against certain risks, owing to the poor environment within which it functions, it only provides low level benefits and that it is not sufficiently placed to provide protection against large and long-term risks such as old age, HIV/AIDS or long-term unemployment.18

Social Protection as a conceptual term has been variously defined. The general view is that social protection is a wider concept than social security and that its increasing usage in rights literature owes to the difficulties presented by the narrow import of social security.19 The Taylor Report described social protection in the following terms:

Comprehensive social protection for South Africa seeks to provide the basic means for all people living in the country to effectively participate and advance in social and economic life, and in turn to contribute to social and economic development. Comprehensive social protection is broader than the traditional concept of social security, and incorporates developmental strategies and programmes designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. It embraces the traditional measures of social insurance, social assistance and social services, but goes beyond that to focus on causality through an integrated policy approach including many of the developmental initiatives undertaken by the state.20

Thus although in this study frequent references will be made to the term ‘social security’, the reader should keep in mind that in those instances, the term is used as a subset of the wider notion of social protection.

Swart describes social protection as incorporating “developmental strategies and programmes designed to ensure minimum living standards for all citizens”.21 It is interesting that Swart refers to all citizens rather than everyone.22Her definition however,

17 See Olivier MP et al “Formulating an Integrated Social Security Response – Perspectives on Developing Links between Informal and Formal Social Security in the SADC Region,” paper presented at the EGDI and UNU-WIDER Conference on the theme unlocking Human Potential: Linking the Informal and Formal Sectors Helsinki, Finland, 17-18 September 2004.

18 See Dekker at 7.19 See Mpedi LG Pertinent Social Security Issues in South Africa (Community Law Centre – University

of the Western Cape 2008) 7, Swart M ‘Social Security’ (Chapter 56D) in Woolman S et al Constitutional Law of South Africa (2nd Edition, Original Service 07-06) Cape Town, Juta, 2006.

20 See Committee of Inquiry Into a Comprehensive Social Security System, Transforming the Present – Protecting the Future (Draft Consolidated Report) March 2002 41. The Committee was Chaired by Prof. Viviene Taylor, hence that term ‘the Taylor Report.’

21 See Swart M ‘Social Security’ (Chapter 56D) in Woolman S et al Constitutional Law of South Africa (2nd Edition, Original Service 07-06) Cape Town, Juta, 2006, 56D3-56D4.

22 S 27(1) of the South African Constitution guarantees the right to social security for everyone.


apart from its narrow focus on citizens, is quite broad as the term ‘developmental strategies’ in particular can be widely interpreted to include even private and informal initiatives. Mpedi states that “[s]ocial protection embraces social security and entails “policies and programmes designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, enhancing their capacity to protect themselves against hazards and interruption/loss of income” ”23. In contrast with Swart’s definition, Mpedi, by referring to “policies and programmes designed to reduce poverty and vulnerability” seems to premise his definition on public measures.

Kabeer describes social protection as referring to ‘the full range of interventions undertaken by public, private and voluntary organisations and informal networks to support individuals, households and communities in their efforts to prevent, manage and overcome risks and vulnerabilities’.24 Sabates-Wheeler & Waite on the other hand, define social protection as describing:

... all public and private initiatives that provide income or consumption transfers to the poor, protect the vulnerable against livelihood risks, and enhance the social status and rights of the marginalised; with the overall objective of reducing the economic and social vulnerability of poor, vulnerable and marginalised groups.25

The definitions offered by Kabeer and Sabates-Wheeler & Waite are broadly similar and wide in compass. However, Kabeer’s specifically points out the role of voluntary organisations and informal networks in the social protection dynamic which the other definitions do not,26 whilst Sabates-Wheeler & Waite’s specifically singles out the target groups for the social protection initiatives as the ‘poor, vulnerable and marginalised groups’ and states that the overall objective is to reduce the ‘economic and social vulnerability’ of these groups.27

Upon a synthesis of the various definitions set out above, in this chapter, social protection is defined as the full range of interventions undertaken by public, private and voluntary organisations and informal networks that provide income or consumption transfers to the poor, protect the vulnerable against livelihood risks, and enhance the social status and rights of the marginalised; with the overall objective of reducing the economic and social vulnerability of poor, vulnerable and marginalised groups and ensuring at least a dignified minimum living standard for all.

23 See Mpedi LG Pertinent Social Security Issues in South Africa (Community Law Centre – University of the Western Cape 2008).

24 See Kabeer N Mainstreaming Gender in Social Protection for the Informal Economy (Commonwealth Secretariat 2008) 4.

25 See Sabates-Wheeler R and Waite M Migration and Social Protection: A Concept Paper (Development Research Centre on Migration, Globalisation and Poverty 2003).

26 See Kabeer N Mainstreaming Gender in Social Protection for the Informal Economy (Commonwealth Secretariat 2008).

27 See Sabates-Wheeler R and Waite M Migration and Social Protection: A Concept Paper (Development Research Centre on Migration, Globalisation and Poverty 2003).


5. CoNCEptUAL frAMEWorK

This part explores the conceptual framework for social protection focusing on the South African regime; but also with reference to developments elsewhere, particularly the Mala-wian situation. Along with the definitional section above, it lays the theoretical framework in light of which the specific findings in the following section ought to be gauged.

5.1 Socio-economic vulnerability of Migrants

Migration is a centuries-old phenomenon. People migrate for numerous reasons including the exploration of new economic opportunities such as jobs, reunification with or joining their families, study, simple desire for change of environment, flight from persecution, health grounds and others. Such movements have become even more pronounced in modern days due to increased globalisation, with better, easier and cheaper means of mobility and communication. In the context of social protection, the Labour Court of South Africa put it well in the case of Discovery Health Ltd v CCMA et al (the Discovery Health Case),28 where Van Niekerk J stated that:

[g]lobalisation has had a profound effect on international migration and has increased significantly the number of people who migrate as a means of escaping poverty, unemployment and other social, economic and political pressures in their home countries.29

When immigrants arrive in their country of destination, they frequently face a host of challenges ranging from linguistic obstacles to learning how to access available social services. They need to, among other things, get to know the government structure of the host country, possibly regularize their legal status, find work or other forms of earning a living, find accommodation, secure access to school for their children, find ways of accessing health and other social services, and seek social and cultural integration.30 In addition, they have to seek means of eking out a living in dignity. Furthermore, they frequently have to grapple with the problem of xenophobia that is on the rise in many

28 Discovery Health Limited v Commissioner for Conciliation, Mediation and Arbitration & Others [2008] 7 BLLR 633 (LC).

29 Ibid par 45.30 See European Commission The Eu Social Protection and Social Inclusion Process: An Article, <http://

ec.europa.eu/employment_social/spsi/docs/spsi_gpa/gpa12_reti_en.pdf> (accessed on 12 November 2008).


parts of the world, including South Africa.31 In the Discovery Health Case, 32 the Court stated that there is a largely unresolved:

... tension between the right of states to protect their labour markets and the protection of fundamental rights of those, who by choice or necessity seek work in countries other than their own. The ILO has noted that the resulting tension between internal and external forces tends to accentuate further the prejudices, xenophobia and racism of which migrants are often victims.33

All these factors play out in characterising migrants as a vulnerable group. This vulnerability is often exacerbated by the fact that migrants are frequently treated as persons outside the political community of the host country, and this entails exclusion from various rights, privileges and amenities accorded to citizens. In the Canadian case of Andrews v Law Society of British Columbia,34 Wilson J explained some vulnerability attributes of migrants within the social polity, stating that:

[r]elative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among “those groups in society to whose needs and wishes elected officials have no apparent interest in attending: see J. H. Ely, Democracy and Distrust (1980), at p. 151 … Their vulnerability to becoming a disadvantaged group in our society is captured by John Stuart Mill’s observation in Book III of Considerations on Representative Government that ‘in the absence of its natural defenders, the interests of the excluded are always in danger of being overlooked ...35

The Judge then proceeded to say that this was a determination which was not to be made only in the context of the law which was subject to challenge, but rather in the context of the place of migrants in the entire social, political and legal fabric of society.36 South African experiences show that the words of Justice Wilson are as true and applicable in Canada, as they are in South Africa today.

Social protection is an agenda for reducing the vulnerability and risk of low-income households with regard to basic consumption and services, and it has become an

31 See Türk V and Nicholson F ‘Refugee protection in international law: an overall perspective’ in Feller E et al (eds.) Refugee Protection in International Law (Cambridge 2003) 4. See also Edwards A ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293-330, 297 where she emphasises the point made by TürK and Nicholson and states that such xenophobia and intolerance towards foreigners contribute to a hostile local environment in which reduced standards of treatment are tolerated or even seen as acceptable” and agrees with Clark that “[c]learly, the treatment of non-nationals is an area of persistent, serious and systematic human rights violations on a world scale”.- See Clark T ‘Human Rights and Expulsion: Giving Content to the Concept of Asylum’ (1992) 4(2) International Journal of Refugee Law 189-204 at 193.

32 See Discovery Health Limited v Commissioner for Conciliation, Mediation and Arbitration & Others par 45.

33 ibid.34 [1989] 1 S.C.R. 143.35 ibid.36 ibid.


important part of the development discourse at both national as well as international levels.37 Kanyongolo states that social protection is one of the emerging topical issues in current studies in Africa generally and Southern Africa in particular, observing that “[i]ncreasing levels of poverty and calls for the reduction or elimination of poverty and social exclusion have heightened debates on the subject.”38

5.2 Social protection regime in South Africa

The general protection situation of migrants in South Africa is rather precarious because of the adverse socio-economic conditions that most South Africans continue to face. These conditions received judicial notice and statement in the Soobramoney case,39 where the Constitutional Court of South Africa (the Constitutional Court) stated that millions of people in the country live in deplorable conditions and in great poverty. The Court enumerated a number of socio-economic problems that continue to beset the South African society including high levels of unemployment, inadequate social security, and lack of access to clean water or to adequate health services. It stated that these conditions already existed when the Constitution was adopted and that a commitment to address them, and to transform the South African society into one in which there will be human dignity, freedom and equality, lies at the heart of the new constitutional order. It concluded that for as long as these conditions continue to exist, that aspiration will have a hollow ring.40 In view of these daunting challenges it has been observed that for obvious political reasons, the government’s focus has fallen squarely on addressing the needs of citizens first, and deferring those of other groups that might be just as vulnerable.41 The result is that non-nationals “often ‘fall through the cracks’ in national health and welfare systems, and access to appropriate services is not always guaranteed.”42

One of the measures put in place in South Africa under the 1996 Constitution in order to mitigate the impact of the deplorable living conditions and to reduce the vulnerability and risk of low-income individuals or households in the country, is the social security scheme provided for under Section 27(1)(c) of the Constitution. Section 27 of the Constitution provides that:

(1) Everyone has the right to have access to (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security,

37 See Sabates-Wheeler, R. and Waite, M. Migration and Social Protection: A Concept Paper (Development Research Centre on Migration, Globalisation and Poverty 2003).

38 See Kanyongolo NR Social Security and Women in Malawi: a Legal Discourse on Solidarity of Care (PhD Thesis, University of Warwick, 2007) (unpublished).

39 Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1 SA 765 (CC).40 ibid par 8.41 See Belvedere, F. et al “Realising Rights: The Development of Health and Welfare Policies for

Asylum-Seekers and Refugees in South Africa” in Handmaker, J. et al (eds.) Advancing Refugee Protection in South Africa (Berghahn Books 2008) 248.

42 ibid.


including, if they are unable to support themselves and their dependants, appropriate social assistance. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3) No one may be refused emergency medical treatment.

In light of the definition of social protection adopted above, it will be observed that this provision taken as a whole, is quite strong in guaranteeing social protection as a right in terms that go beyond the usual restrictive compass of state guaranteed social security. It is one of the hallmarks that distinguish the South African Constitution as being broadly transformative of the socio-economic fabric of society, and as one of the most progressive constitutions in the world. The Constitution guarantees these rights for everyone, and some commentators have suggested that the term ‘everyone’ in Section 27(1) of the Constitution means ‘everyone’, thus including non-nationals.43 In the case of Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development (the Khosa Case),44 the Constitutional Court, specifically addressing the right to social security, held that given that the Constitution expressly provides that the Bill of Rights enshrines the rights of all people in the country, and in the absence of any indication that the rights under section 27(1) of the Constitution are to be restricted to citizens as in other provisions in the Bill of Rights, “the word ‘everyone’ in this section cannot be construed as referring only to ‘citizens’.”45 Further, South Africa, like all other SADC countries, is a party to the 2003 Charter of Fundamental Social Rights in SADC. Article 10 of the Charter is in the following terms:

Social Protection

1. Member States shall create an enabling environment so that every worker in the Region shall have a right to adequate social protection and shall, regardless of status and the type of employment, enjoy adequate social security benefits.

2. Persons who have been unable to either enter or re-enter the labour market and have no means of subsistence shall be entitled to receive sufficient resources and assistance.

Olivier observes that the “Charter makes comprehensive provision for the establishment of harmonised programmes of social security throughout the region.”46 The Charter contains provisions relating to the social protection of both workers and those who are not employed. He further states that according to the Charter, states parties are enjoined to create an enabling environment such that every worker in the SADC Region shall, regardless of status and the type of employment, have a right to adequate social protection. It further requires that those that are unable to either enter or re-enter the labour market and have no means of subsistence should receive sufficient

43 See Pieterse, M. Foreigners and socio-economic rights: legal entitlements or wishful thinking? (2000) THRHR 51(63).

44 2004 6 SA 505 (CC).45 ibid par 47.46 See Olivier, M.P. Social protection in the SADC region: opportunities and challenges (2002) in

International Journal of Comparative Labour Law and Industrial Relations, 18: 377-402, 386.


resources and social assistance.47 The SADC Social Rights Charter is not just a hortatory declaration like some SADC instruments, but a treaty. There can therefore be no doubt that faithful implementation of obligations under this Charter would revolutionise the social protection regime in SADC. The import of Article 10(1) seems to suggest that no discrimination is allowed with regard to social protection for workers, including migrant workers, irrespective of their immigration status. One problem with this provision is that it ties social protection to employment. Be that as it may however, it is clear that a large majority of migrants fall into the category of workers and hence the strong relevance of this provision.

In the Khosa case the Constitutional Court was confronted with the question as to whether legislative provisions under the Social Assistance Act 59 of 1992 (since replaced with the Social Assistance Act 13 of 1994) that excluded permanent resident immigrants from accessing social security benefits under Section 27(1)(c) of the Constitution were consistent with the text of the Constitution. The Court declared the impugned provisions unconstitutional. Mokgoro, J. delivering the judgment of the Court stated that:48

[t]he right of access to social security, including social assistance, for those unable to support themselves and their dependants is entrenched because as a society we value human beings and want to ensure that people are afforded their basic needs. A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.

Millard argues that the Khosa Case “signalled a departure from the introspective and nationalistic approach towards social assistance that previously characterised the South African system.”49 The Social Assistance Act (2004) was passed as a regulatory framework to facilitate the implementation of the right to social security.50The Act however only applies to citizens and permanent residents.51 Dekker argues that “[a]lthough South

47 ibid at 386-387.48 par 52. 49 See Millard, D. Migration and the portability of social security benefits: the position of non-citizens in

the southern African development community (2008) African Human Rights Law Journal, 8(1): 37-59 at 42.

50 Among other things, the Act was passed “in order to prevent the proliferation of laws, policies and approaches to the execution thereof from materially prejudicing the beneficiaries or recipients of social assistance, as well as the economic interests of provinces or the Republic as a whole or from impeding the implementation of a national social assistance economic policy.” See 3rd Preambular citation to the Act.

51 See s 5(1)(c) of the Act. The Act does however grant the Minister responsible powers to prescribe some categories of persons that might also benefit from the provisions of the Act. In the case of the Government of South Africa & Others v Grootboom & Others (2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC)), the Constitutional Court of South Africa, elucidating on state obligations in respect of socio-economic rights generally (of which formal social protection measures form part), and the right to housing in particular, stated that “[a] society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality… Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, not be ignored by the measures aimed at achieving realisation of the right. [T]he Constitution requires that everyone


Africa has a fairly well-developed social security system for a developing country, the system suffers from many deficiencies”. As an instance, she states that the system “is in fact not comprehensive and many categories of people are excluded from its protective scope.” Millard identifies the position of non-nationals as one of the weak aspects of South Africa’s social security system; stating that apart from:

... some exceptions for foreigners with permanent residence status, non-nationals are generally excluded from social security in South Africa. This is particularly evident in social insurance in South Africa. As far as employment-based schemes are concerned, entitlement to benefits mainly depends on employee-status. It follows that only those who have permanent residence, or whose stay in the country is otherwise legal, may qualify to be ‘employees’ in terms of the unemployment insurance Act or the Occupational Injuries Act.52

She then observes that the Road Accident Fund is the only fund that is not premised on employment and not dependent on nationality of the claimant.53

In light of the various challenges that migrants face as described above, they often find themselves in a high risk and vulnerable situation and finding coping mechanisms in such an environment against livelihood risks and vulnerabilities in order to enhance their social status and to ensure a decent livelihood in dignity for themselves and their families, is bound to be an arduous task. Dekker aptly states that

[i]n order to financially sustain themselves, those not covered by formal social security have developed their own survival strategies. These survival strategies can be labelled as informal social security and exhibit elements of, and reveal similarities to, concepts such as social assistance and social insurance. It can therefore be stated that, in South Africa, formal social security and informal social security are both systems which provide social protection.54

5.3 Social protection regime in Malawi

The Constitution of the Republic of Malawi of 1994 (the Malawian Constitution) does not explicitly guarantee either the right to social protection or the right to social security. However, there are various provisions that could be collectively construed to engender an interpretation that holds that the right is at least implicitly guaranteed. These provisions include Section 30 of the Malawian Constitution that guarantees the right to development,

must be treated with care and concern. If the measures…fail to respond to the needs of those most desperate, they may not pass the [reasonableness] test.” par. 44.

52 See Millard, D. Migration and the portability of social security benefits: the position of non-citizens in the southern African development community (2008) African Human Rights Law Journal, 8(1): 37-59 at 41.

53 ibid.54 See Dekker, A.H. Informal Social Security: A Legal Analysis (LLD Thesis – university of South Africa

2005) 6.


section 29 that guarantees the right to work and the right to pursue economic activity,55 section 25 that guarantees the right to education, and section 13 on non-binding directive principles of national policy that cover such issues as the provision of health care, education, food and nutrition, and provision for the special needs of vulnerable groups such as children, the elderly and people with disabilities. Mzikenge-Chirwa argues that “typical socio-economic rights as the rights to social security, food, health, housing, and water [could be] held to be implicitly recognised by section 30 guaranteeing the right to development.”56 This argument is echoed by Kanyongolo57 and Millard.58According to Millard, in Malawi, social security measures include healthcare benefits, severance pay (in the event of either unilateral termination of employment by employer or upon mutual agreement between employer and employee), pension benefits (especially for workers in the public sector and bigger corporations or other business organisations), disability benefits, provision for minimum wages and a workers’ compensation scheme.59 It is evident that he misses out on provision of free primary education.

In addition to the foregoing, Malawi is also a party to, among other treaties, the 2003 Charter of Fundamental Social Rights in SADC and the International Covenant on Economic, Social and Cultural Rights. Hence, Malawi is under an obligation to ensure the implementation of its provisions scrupulously and in good faith – the principle of pacta sunt servanda.

5.4 hagemejer’s typology

Hagemejer has catalogued a list of risks and needs that need to be covered by social protection in the context of developing countries.60 It is a list that is comprehensive enough to capture the salient features of the definitional and conceptual social protection issues explored above. His list largely informs the classification of variables addressed in the next part of this report (on findings and analysis). Hagemejer’s list is as follows:

55 One can argue for instance that by expressly guaranteeing the right to work, the state must take all appropriate steps to ensure, progressively and within the state’s available resources, social protection for those that are unable to find work through such measures as the provision unemployment benefits.

56 See Mzikenge-Chirwa, D. A Full Loaf is Better than Half: the Constitutional Protection of Economic, Social and Cultural Rights in Malawi’ (2005) 49 Journal of African Law 207-24.

57 See Kanyongolo, N.R. ‘Social Protection in SADC: Developing an Integrated and Inclusive Framework – the Case of Malawi’ in Olivier MP and Kalula ER (eds.) Social Protection in SADC: Developing an Integrated and Inclusive Framework (CICLASS/IDLL, 2004).

58 See Millard, D. “Migration and the Portability of Social Security Benefits: The Position of Non-Citizens in the Southern African Development Community” 2008 African Human Rights Law Journal Vol. 8, No. 1 37-59 at 45.

59 ibid.60 See Hagemejer, K. Social protection expenditure and performance reviews: Methodological note on

definitions, classifications and performance indicators, <http://www-ilo-mirror.cornell.edu/public/english/protection/socfas/research/sper/spersmet.pdf> (accessed on 12 March 2009).


Sickness (income maintenance and support in cash in connection with physical or ��mental illness, excluding disability).Health (health care needed to maintain, restore or improve health of the people ��protected irrespective of the origin of the disorder).Education benefits (free access to public education, fee waivers, free textbooks, etc.).��

Food and nutrition benefits (food aid, food stamps and food subsidies).��

Disability (income maintenance and support in cash and in kind in connection with ��inability of physically or mentally disabled people to engage in economic and social activities).Old-age (income maintenance and support in cash or kind in connection with old ��age).Survivors (income maintenance and support in cash or kind in connection with the ��death of a family member).Family/children (support in cash or kind in connection with the costs of pregnancy, ��childbirth and adoption, bringing up children and caring for other family members).Unemployment (income maintenance and support in cash or kind in connection of ��unemployment).Housing (help towards the cost of housing).��

Social exclusion not elsewhere classified (benefits in cash or kind specifically intended ��to alleviate poverty and social exclusion where they are not covered by one of the other functions).61

In the following part of the report, the study details the findings of the survey in respect of various dimensions of social protection pertaining to Malawian migrants in Johannesburg, analysing the same in view of the conceptual basis laid out above.

6. fiNDiNGS AND ANALYSiS

This part details the study findings and further provides a critical analysis. It is divided into the following sections: general information, residence status, reasons for migration, duration of stay, employment history, access to health care, access to education, access to housing, social assistance grants/provisions, social protection in situations of dire need/emergency, and remittances and investments.

6.1 General information

A total of 44 Malawian migrants were interviewed from various areas in Johannesburg. These areas included Johannesburg CBD, Cresta, Randburg, Forsdburg, Brixton,

61 ibid.


Diepsloot, Hillbrow, Alexandra, Tembisa, Roodepoort, Mayfair and Melville. In terms of gender, a large majority of respondents were men. The ages ranged from 18 years (the youngest) to 53 years (the oldest). Most of the respondents were relatively young, in their mid-20s to early 30s. One thing that is therefore immediately apparent is that most Malawian migrants fall in the most economically active and productive age group. They therefore assume various socio-economic obligations in the context of, among other things, the African traditional communitarian values of ubuntu and harambee as discussed above.

In terms of family life, a large majority of the respondents were married and had children. Strikingly, the overwhelming majority of the respondents who had children indicated that they left their children in Malawi. One of the major factors leading to this situation is the general lack of access to education facilities in South Africa as explained in part 4.7 below. This shows a direct link between exclusion of migrants from some forms of social protection with the splitting of families. Such splitting of families implicates the right to family life of the migrants concerned. In the case of Dawood et al v Minister of Home Affairs and Others,62 O’Regan, J. observed that:

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children…The importance of the family unit for society is recognised in … international human rights instruments … when they state that the family is the “natural” and “fundamental” unit of our society63…. [Under the South African Constitution] there is no specific provision protecting family life as there is in other constitutions and in many international human rights instruments.”64

She however proceeded to hold that the absence of such a provision notwithstanding, a number of constitutional rights might still be implicated and that “the primary right implicated is … the right to dignity.”65 Thus the right to family life is recognised and protected under the South African Constitution, and the state has an obligation to respect, protect and promote this right.

With regard to levels of education, most of the respondents had High School education, followed by those with primary education and a relatively small number had tertiary or higher education. It would therefore appear that most Malawian migrants in Johannesburg are low-skilled people. It also emerges that there is higher unemployment in Malawi, in respect of people with less than tertiary education, than in South Africa, and this largely explains why most of the migrants fall into this education bracket. Following a research conducted in South Africa in 2007, Sward and Sabates-Wheeler found that upon comparison of the socio-economic conditions of Malawians who had migrated to the United Kingdom (UK) with those that had migrated to South Africa, ‘‘[t]here were

62 2000 3 SA 936 (CC).63 par. 31.64 par. 36.65 The right to human dignity is protected under s 10 of the Constitution of South Africa.


significant socio-economic differences between the two groups …, as those who migrated to South Africa were typically from poorer families and had lower levels of education and occupational status than those who moved to the UK.” This study therefore confirms these previous research findings in so far as the socio-economic conditions of the average Malawian migrant in Johannesburg are concerned.66

The result is that most Malawian migrants in Johannesburg are very prone to socio-economic shocks in life and hence in need of social protection avenues to hedge the risks and vulnerabilities in this regard. It is therefore pertinent that this study explores the social protection avenues that they have.

6.2 residence Status

Malawians living in Johannesburg fall into various residence categories. Although a large majority of Malawian migrants in the study were staying in Johannesburg on expired one month Visitor’s Permits, there was still a significant representation of those in other residence categories. These included those on permanent residence (albeit very few). Work Permit holders; Study Permit, holders, Visitors’ permits for dependants of those on either work or study permits, asylum seekers and recognised refugees. For those on expired one month Visitors’ Permits, some of these permits had been expired for several years. No respondent however, indicated that they entered South Africa illegally or undocumented. Thus the majority of the migrants should perhaps be appropriately referred to as irregular rather than undocumented migrants. In relation to those that claimed to be asylum seekers or recognised refugees, it is interesting that when the respondents were asked the reasons for coming to South Africa, none indicated that they fled from actual or potential political or other persecution in Malawi which would ground a claim for asylum.67 On further engagement with some of the ‘asylum seekers’, it emerged that they simply adverted to

66 See Sward, J. and Sabates-Wheeler, R. ‘Social Protection of Migrants from the Global South: Protection gaps and strategies to “self-insure”’ Development Research Centre on Migration, Globalisation and Poverty Briefing Paper No. 14 (Sussex, 2008) – accessed from <http://www.migrationdrc.org/publications/ briefing_papers/BP14.pdf> (accessed on 12 March 2009).

67 According to s 3 of the Refugee Act of 1998, ‘a person qualifies for refugee status for the purposes of this Act if that person-

owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere: or

is a dependant of a person contemplated in paragraph (a) or (b).’ Evidently, none of the respondents who claimed asylum seemed to satisfy any of these definitions of

a refugee.


the asylum procedure in order to regularise their stay in South Africa and to be able to secure more formal and better jobs. Thus one asylum seeker for instance, when asked why he decided to leave Malawi for South Africa, said: “I got advised [by] friends that South Africa was better in terms of jobs” and that “friends were in Johannesburg who could accommodate me”. Asked why he was seeking asylum and whether there was anything in particular that he feared if he returned home, he stated:

... my brother, don’t you know how these things work? There is no bar for me to return to Malawi, it’s my home. But there is no money there. We do these things because of the challenges we face. When you have refugee papers, you are allowed to work, and also the police do not give you many problems when you meet them.

Thus it appears that the asylum procedure is being used by some migrants as a way of mitigating the effects of the socio-economic exclusions that they face, in addition to using the procedure as a hedge against deportation. It however needs to be emphasised that considering that this was a relatively small sample survey, there are bound to be some Malawian migrants who have genuine asylum claims within the terms of applicable refugee law.

6.3 reasons for migration

As stated above, the overwhelming majority of respondents cited economic hardships in Malawi, in particular scarcity of jobs or very poor pay in instances where they were previously employed, as reasons for migrating to South Africa. There was a general feeling that life in South Africa was better than in Malawi. McMillan, resident in New Town, and who has been in South Africa for seven months, explaining the reasons for coming to Johannesburg, stated that “my friends who came to South Africa before were looking better and had money whenever they visited Malawi, so I was inspired to come to South Africa.” Another migrant, Musa, who has been in South Africa for 5 years, explained in respect of the same issue that he came to Johannesburg “because there [are] more jobs in South Africa compared to the rest of African nations.” Most of the migrants already had networks such as friends or relatives in South Africa when they migrated. The other reasons for coming to Johannesburg were joining family and study. A few indicated that they had previously been deported and returned to South Africa. They managed to obtain new Passports in Malawi to facilitate their return to South Africa by reporting their previous Passports lost or stolen. They cited as reasons for return, harsh economic conditions in Malawi that were comparatively much worse than in South Africa even after factoring in all the risks and vulnerabilities associated with being an African foreigner in South Africa. One such previously deported migrant is Rex,68 a 39-year-old man who has been in South Africa for five years and works as a shop assistant in the Johannesburg CBD. When asked to explain why he decided to return to South Africa after deportation in 2006, he said:

68 Not his real name.


[it was] because I had nothing to do in Malawi and poverty was too much.

In summary therefore, it can be concluded that most of the Malawian migrants immigrated to South Africa as a social protection strategy.69 Dalton, a Tailor working for another Malawian businessman in the Johannesburg CBD and who has stayed in South Africa for the past 8 years, provided an explanation that aptly illustrates this point. He said: “to come here [South Africa] I was given money by [sic] the member of the family. What it meant to my family is the big return they need from me when I go back.” This is also further illustrated by the regular remittances they send to Malawi, and investments that they are making pending return. This is consistent with Bloch’s statement that migration to South Africa has been described as a well-established household poverty reduction strategy in Southern Africa,70 as well as Dekker’s proposition that informal social protection arrangements rely heavily on principles of reciprocity and solidarity.

6.4 Duration of stay (actual and intended)

Most of the respondents were fairly new migrants in South Africa, and a large proportion had been in the country for less than two years. In terms of their intended plans of staying in South Africa, many respondents indicated that their intentions of staying in South Africa were only short term. As earlier shown, most indicated that they had left their families behind and that their reason for coming to South Africa was to accumulate sufficient funds or resources that would provide them with a stepping stone for running businesses and leading a good life back in Malawi. A permanently resident respondent, SC,71 interestingly indicated that he also had only short-term plans of further stay in South Africa. He stated that:

My ID indicates that I am a non-citizen of RSA and that has led to my being denied opportunities of different types on many occasions. My lack of strong command of local languages also contributes to similar instances. I therefore do not plan on staying in South Africa for much longer. Although savings are generally impossible from my modest income, I am starting off slowly with a small business to raise funds, and I have already acquired land in Malawi.

His statement reveals the existence of some xenophobic undercurrents that even occasion social exclusion of permanently resident migrants from various services in the country to which they are legally entitled. It is thus apparent that xenophobia might be a factor influencing the decision of many migrants to stay in the country on short-term basis.

Few of the migrants indicated that their stay in South Africa was either cyclical, meaning that they rotate between staying in Malawi and staying in Johannesburg., or that it was

69 See Sabates-Wheeler, R. and Waite, M. Migration and Social Protection: A Concept Paper (Sussex: Development Research Centre on Migration, Globalisation and Poverty 2003).

70 See Bloch, A. “Gaps in Protection: Undocumented Zimbabwean Migrants in South Africa” Forced Migration Studies Programme (Migration Studies Working Paper Series No.38).

71 Short form of his real name.


path-breaking, meaning that they were exploring the possibility of staying in Johannesburg for a longer period depending on what they would find out. A significant number of the respondents indicated that they are in South Africa with intentions of long-term or permanent stay, albeit much fewer than those who stated that they had only short-term plans in South Africa.

6.5 Access to employment and conditions of work

A large majority of the respondents were employed in the informal sector whilst a few others indicated that they were self-employed. No respondent however said that they were unemployed. It would therefore appear that the level of unemployment among Malawian migrants in the city is very low. However, a large majority indicated that they had previously experienced unemployment. As a coping strategy during such hard times, with a few exceptions that indicated that they had to struggle by themselves, the overwhelming majority indicated that they were supported by relatives, friends or both during such periods. This is characteristic of informal social assistance as a form of social protection, and fits into the description of informal social security as provided by Dekker and Olivier et al above. Thus the survey revealed, consistent with Dekker and Olivier et al’s propositions, that these informal social protection avenues are two pronged: (a) neighbourhood (or community) – based; and (b) kinship-based.

Very few among those employed, and these were exclusively those employed in the formal sector, indicated that they had concluded formal or any form of written employment contract with their employers. Correlatively, it were only these few that indicated that their employers respected minimum wage regulations. However, on further interrogation, it appeared that most of the respondents who stated that their employers did not respect minimum wage rules were not even aware of what those minimum wages were. They only complained of being underpaid as compared with South Africans doing the same job, and they construed that as entailing lack of compliance with minimum wage regulations. When asked why they could not demand better pay or fair and equal treatment, the reply was that they were foreigners with no proper immigration papers and hence they could be summarily dismissed and/or reported to police for deportation at anytime if they made such attempts. Thus for instance, one respondent Abdulla,72 a shop assistant at the Oriental Plaza in Fordsburg said:

The law is not followed. We are underpaid in comparison with our South African colleagues doing similar work. For instance, for this type of work, a local would receive up to R3000 whereas we are paid R400 per week. They [the employers] know that we cannot go anywhere to complain. Of course there is an advantage to it. Many employers prefer employing us [foreign migrants] to South Africans for this type of work because we work harder. In addition, we are still much better off compared with what we could have been having back home.

72 Not his real name.


The few who indicated that they had concluded formal contracts and that their employers complied with either minimum wage rules or equal treatment labour laws were the more highly educated ones with proper immigration documentation. Upon further interrogation, none of the respondents indicated that they belonged to any form of labour union. Most either feared that they would not be admitted to membership by reason of not having proper immigration papers; or they feared that they would be summarily dismissed by their employers once it is discovered that they had joined a labour union since they have no proper legal documentation. Alex, a 29-year-old man working as a house cleaner in Randburg, and who has stayed in South Africa for two years, stated that:

I see no point joining a labour union. It would just bring me problems as my employer would not be happy and I can lose my job if discovered. I came to South Africa for a reason. As long as I have my needs fulfilled, I am happy with my family, that’s all.

Another respondent, a Malawian young lady resident in Cresta also addressed the issue of joining labour unions as well as the question of access to various socio-economic entitlements generally. She said:

It is very hard to join such unions, or to do anything since we are foreigners and they [South Africans] are accusing us of taking their jobs.

A permanently resident migrant, SC, addressing the same issue, said that: perhaps as a non-citizen, there is this sense of not belonging.

Thus these findings generally reveal that the illegal residence status for most of the migrants exposes them to exploitation on the labour market; and exclusion from participation in some activities necessary to protect or promote their rights such as participation in labour/trade union activity. The general ‘sense of not belonging’ brought out by the permanently resident respondent above however, also reveals that some of the exclusions are the result of more complex social phenomena other than simple issues of residential or immigration status. They pervade the general experience of the migrants and seem deeply rooted in xenophobic attitudes prevalent in the host society. General lack of knowledge about their rights is another factor that significantly contributes to the exploitative labour practices that they are subjected to. Waza for instance, a tailor who works in a clothing shop in the Johannesburg CBD when asked whether he was familiar with the minimum wage or other entitlements he has as an employee under South African labour law said that “no, I do not know, may be my boss knows.” Further, none of the respondents were previously aware that they could as well present an employment dispute with an employer to the Commissioner for Conciliation, Mediation and Arbitration (CCMA) irrespective of their immigration status in the country. An illustrative case on this point is the Discovery Health case.73 The brief facts of this case were that one of the respondents,74 German Lanzetta, an Argentinean national, referred an unfair dismissal dispute with his former employer,

73 See Discovery Health Limited v. Commissioner for Conciliation, Mediation and Arbitration & Others [2008] 7 BLLR 633 (LC).

74 The 3rd respondent.


Discovery Health Ltd, to the CCMA. Discovery Health brought an Application before the Labour Court of South Africa, contesting that the CCMA had no jurisdiction because only an ‘employee’ as defined by s 213 of the Labour Relations Act (LRA) could claim the protections that the Act affords. Discovery Health argued that the statutory definition contemplates that an ‘employee’ is a party to a valid contract of employment and since the contract of employment concluded with Lanzetta (a foreign national not in possession of a valid work permit) was tainted with illegality, Lanzetta’s contract was not valid and he was therefore not an ‘employee’ as defined in the LRA. It thus urged that since Lanzetta was not an ‘employee’, he could not claim the right not to be unfairly dismissed and the CCMA had no jurisdiction to arbitrate his dispute with them. The Court found that the CCMA had jurisdiction on various grounds. Among other things, it held that:

If s 38(1) [of the Immigration Act, 2002] were to render a contract of employment concluded with a foreign national who does not possess a work permit void, it is not difficult to imagine the inequitable consequences that might flow from a provision to that effect. An unscrupulous employer, prepared to risk criminal sanction under s 38, might employ a foreign national and at the end of the payment period, simply refuse to pay her the remuneration due, on the basis of the invalidity of the contract. In these circumstances, the employee would be deprived of a remedy in contract, and if Discovery Health’s contention is correct, she would be without a remedy in terms of labour legislation. The same employer might take advantage of an employee by requiring work to be performed in breach of the BCEA [Basic Conditions of Employment Act], for example, by requiring the employee to work hours in excess of the statutory maximum and by denying her the required time off and rights to annual leave, sick leave and family responsibility leave. It does not require much imagination to construct other examples of the abuse that might easily follow a conclusion to the effect that the legislature intended that [a] contract be invalid where the employer party acted in breach of s 38(1) of the Act. This is particularly so when persons without the required authorisation accept work in circumstances where their life choices may be limited and where they are powerless (on account of their unauthorised engagement) to initiate any right of recourse against those who engage them.75 (own emphasis)

The last sentence in this quotation particularly resonates with the circumstances in which most of the respondents in this survey found themselves. The Court was mindful that others would interpret its position as condoning illegality and justified itself by saying, among other things, that “[i]f employers were aware that foreign nationals who do not have work permits had rights of recourse to the LRA and the BCEA (and thereby to CCMA and to this Court) they would be less likely to breach s 38(1) of the Immigration Act by entering into contracts in these circumstances.”76 As much as the position taken by the Court in this case is such that it might eventually lead to declining job opportunities for illegally resident foreign migrants in South Africa; what it does is to affirm that once employed, foreign migrants are entitled to labour law protections just like any other employee in the country. Interpreted liberally, this position at law could even assist such

75 ibid par 30.76 ibid par 33.


employees to recover their employment dues and have them sent to them in their home countries in the event of deportation.

A number of Malawians personally known to the author, have previously been deported from South Africa and all of them state that it is almost practically impossible to recover their outstanding employment dues once deported, and frequently they forfeit all their property acquisitions, except in a few cases where friends or relatives are able to organise to send the property to the owner in Malawi.

Most of the respondents in the survey were unaware of this position. Lack of knowledge therefore excluded them from formal social protection actually available to them under South African law.

In relation to the point of recovering employment dues in the event of deportation, the more general question of the portability of proprietary interests acquired in the course of one’s migration, irrespective of status, is one that needs further exploration in the social protection discourse, particularly with regard to the informal sector. It suffices to mention for present purposes that prevailing practice, whereby irregular migrants practically forfeit all their fortune and proprietary interests in the event of deportation, exposes already vulnerable and risk-prone migrants to further socio-economic insecurities, risks and vulnerabilities. There is therefore urgent need of review and reform.

6.6 Access to health care

Access to healthcare services is a constitutional right in South Africa, and is guaranteed for everyone.77 Further, the Constitution provides in section 27(3) that no one may be refused emergency medical treatment. Thus from a constitutional standpoint, both the more general right of access to healthcare services and the specific right to emergency medical treatment are guaranteed to everyone irrespective of status such as nationality or immigration status.

From the survey, a large majority of the respondents stated that they benefitted from or had access to free health services in Malawi. This was in sharp contrast with their experiences in South Africa as most of them indicated difficulties in accessing the public healthcare system. Thus only a few indicated that they were able to access public health services at a fee, but they complained that they faced xenophobic hostility from healthcare personnel. A Mrs. Phiri, (one of the few women respondents) stated for instance that on a visit to the Chris Hani Baragwanath Hospital in Soweto: “a nurse asked me when I went there to get treatment for persistent abdominal pains why I was bothering them [the healthcare workers] as if there are no hospitals in Malawi. I was not attended to for a long time but eventually I received treatment.” Some indicated that they were turned back from public hospitals by reason of lack of South African IDs. Others did not access the public healthcare institutions just because they had an apriori belief that they would

77 See s 27(1)(a) of the Constitution.


not be attended to because they did not have South African IDs or valid permits. From a constitutional perspective, it seems clear that denial of access to healthcare services on account of lack of possession of a South African ID or a valid permit are inconsistent with Section 27(1)(a) of the Constitution. The study here also reveals a significant amount of lack of knowledge of their rights among Malawian migrants in this regard. Many respondents indicated that in the event of illness or other need for health-related attention, they resorted to private clinics, and that normally, where one is in financial need, friends and relatives contribute towards the cost of treatment. This practice is illustrative of an extensive and well-established pattern of informal networks of social assistance as a survival strategy and hence a form of social protection in an environment of exclusions from access to health care.78

It is apparent however that the practice of refusing foreign migrants who do not possess valid South African IDs access to healthcare services is not officially sanctioned by the authorities. Thus in a Memorandum from the National Department of Health in Pretoria dated 15th February 2007, the Department advised provincial departments that “[p]atients should not be denied ART [Anti-Retroviral Treatment] because they do not have an ID if all issues affecting adherence have been addressed and the treatment team is convinced that the patient stands to benefit from the intervention.” It appears however that the practice of exclusion on account of IDs continued, at least in the Gauteng Region, prompting the Gauteng Department of Health to issue another Memo to Hospitals and Healthcare providers dated 4th April 2008, stating that it had come to its attention that the practice of excluding undocumented or irregular migrants from public healthcare services was continuing and that it was ‘not acceptable’. A directive was therefore issued that “no patient should be denied access to any health care service, including access to anti-retrovirals irrespective of whether they have a South African identification document or not.” From this survey however, it would appear that such exclusions from access are still continuing. As other commentators have said, “[a]s with many aspects of these debates on rights entitlement, the policy may look good, but it simply does not translate well in practice.”79 Landau criticises these excluding practices, stating that ”[p]roviding health care for refugees, asylum-seekers and other non-nationals is also a critical public health concern”, and arguing that “denial of health care can lead to the spread of infection and disease to migrants and communities in which they live. Apart from being a violation of human rights and dignity, illness potentially limits the contributions of all South Africans.”80

78 See Dekker, A.H. Informal Social Security: A Legal Analysis (LLD Thesis – university of South Africa (2005)).

79 See Belvedere, F. et al “Realising Rights: The Development of Health and Welfare Policies for Asylum-Seekers and Refugees in South Africa” in Handmaker J et al (eds.) Advancing Refugee Protection in South Africa (Berghahn Books 2008).

80 See Landau, L.B. “Regional Integration, Protection and Migration Policy Challenges in Southern Africa” in Handmaker J et al (eds.) Advancing Refugee Protection in South Africa 37.


It might perhaps help if health authorities enhanced civic awareness among healthcare staff on the issue of the qualifying criteria for healthcare provision in respect of non-nationals. In addition, imposing administrative and other penalties for discriminatory or hostile conduct by healthcare personnel might also help in guarding against xenophobic attitudes and practices against non-nationals.

6.7 Access to education

Section 29 of the Constitution guarantees everyone the right to basic education, including adult basic education. Further, the South African Schools Act81 provides for compulsory school attendance for children between the ages of seven and fifteen (15). Section 3(1) of the Act imposes a duty on every parent (including guardian) to cause every learner within that age bracket for whom he or she is responsible to attend school from the first day of the school year. In addition, Section 5(3)(a) of the same Act provides that “[n]o learner may be refused admission to a public school on the grounds that his parent is unable to pay or has not paid … school fees”. From these provisions, it is clear that the law requires all children of the defined school going age to attend school. This includes migrant children.

The study reveals that just like in the case of accessibility to health services, most Malawian migrants in Johannesburg (or their children and/or dependants) have previously benefited from the free primary education policy of the Malawi Government. By contrast, they reported that their South African experience was fundamentally different with no respondent indicating that they had access to free primary education. Only a small number indicated that their children could access fee-based public education or private education. In fact, it emerged that exclusion from the public education system, and the high cost of enrolment in the few private schools that permit admission irrespective of residence permit documentation, largely explains for the large number of respondents interviewed who indicated that their children were in Malawi attending school. It is an interesting juxtaposition that whilst most respondents are able to access at least private health care in South Africa irrespective of the status of their stay in the country; it is very difficult for them to enrol their children in schools including private schools. On further interrogation, a number of respondents indicated that whilst it is possible for children to be admitted to some private schools, they still need a formal South African ID in order to be registered for purposes of the Matric examinations. Thus some stated that their children have been forced to change surnames so as to appear as if they are children of either South Africans or Malawians with South African IDs. One respondent, who has been in South Africa for 10 years (in Ferndale), decried the lack of access to education and health services in South Africa. He stated that:

The Bible says any place we step on is ours but this Government [South African Government] is punishing me because I do not have valid papers (ID). We do not have

81 Act 84 of 1996.


any voice in this country. It is not ours. As long as we are able to get food, it’s fine. I get my children in private school using people who have valid IDs.

It is submitted that changing or the prospect of changing children’s identities under these circumstances clearly violates their rights to a given name and human dignity.

Thus access to education in South Africa, or the lack thereof, appears to be a major exclusion for Malawian migrants from one of the essential elements of the ‘basic social security package’ within the social protection framework.82 The exclusion seems to be more a matter of practice/implementation rather than normative (i.e. as a result of law or state policy). It is a practice that violates, among others, the provisions of the South African Schools Act of 1996.

Universal free primary education has become increasingly recognised as a fundamental and non-derogable right on the international plane. It is therefore strongly recommended that the South African Government urgently institutes an Inquiry into the question of the accessibility of basic education for migrant children in South Africa, with a view to ensuring that there is universal and compulsory basic education for all children as provided for in the Constitution, the South African Schools Act as well as international treaties such as the Convention on the Rights of the Child of 1989 (CRC).

6.8 Access to housing

Access to safe and secure housing is essential for a dignified life.83 This therefore calls for an interrogation of the barriers to access to housing faced by migrants.84 Section 26(1) of the Constitution guarantees everyone the right to have access to adequate housing. Subsection (2) enjoins the state to take reasonable legislative and other measures to ensure the progressive realisation of the right; whilst sub-section (3) prohibits arbitrary evictions or demolitions without an order of the court.

There were varied responses on the question of housing. A number of respondents indicated that they were able to access free housing in Malawi and not in South Africa. On further inquiry, a number of these respondents referred to the traditional forms of housing that they are able to freely build on customary land in Malawi; which they cannot in South Africa and they necessarily have to find rented accommodation. Foster who stays in Randburg, explained his experience in this regard, stating that:

Before I came here, I was staying at Mpondasi [in Mangochi District in Malawi] in a house that I built for myself. I built it using locally available [traditional] materials. I did not have to think of rent because it was my own house. Here, accommodation is very expensive. I stay with a friend. We share a servants [sic] quarter room owned by a South African. We are happy however because here we have more money and we are able to buy things we could never buy in Malawi. Life in Malawi is hard.

82 See International Labour Organisation Social Security Principles (ILO 1998).83 See CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa (2008) 51.84 ibid.


In addition, several also indicated that they had access to government subsidised rented housing in Malawi. These are houses that belong to and are managed by the Malawi Housing Corporation (MHC), a government corporation established to enhance access to quality housing by Malawians, particularly those of the low-income group.85 By contrast, a number of respondents indicated that unlike South Africans who are entitled to Reconstruction Development Programme (RDP) free or subsidised housing, they, as non-nationals, are not entitled to the same. A number mentioned that they knew several deserving permanently resident Malawians who still could not be allocated RDP housing on account of their nationality.

Almost all the respondents indicated that they could easily find rented housing in Malawi, as long as they had money. Exactly the same number indicated that the same applied to their South African experience. However, most of them explained that although their income was much less in Malawi, housing also tended to be much cheaper compared to South Africa and the result is that their housing conditions in South Africa are relatively harsher than in Malawi. Most indicated that they share rented rooms whilst in Malawi they could afford to rent separate houses.

On evictions, quite a significant number of migrants indicated that they had been previously evicted from their rented premises on very short or no notice at all, and without order of the Court, and that the practice was fairly prevalent with regard to migrants in Johannesburg generally. When asked as to why they did not lodge any complaint with appropriate authorities, the recurrent response that they feared deportation was almost uniform. McDonald A,86 a young man working in the Johannesburg CBD, stated that:

Finding accommodation in Johannesburg is not difficult as long as you have money. I stayed in Alexandra for a few months. We were several of us [Malawian migrants] sharing a room. One day, in 2006, the Landlord simply requested us to get out of the house within a week. We complained, asked for more time, but he just shouted at us saying he did not care, after all we were illegal immigrants and he could report us to police if he wanted. We just had to do as he said.

As indicated earlier, on the question as to how they coped in the event of short or no notice evictions, all respondents who addressed this issue stated that they were accommodated by relatives or friends until they found alternative housing. This is again illustrative of informal social security at play.

The practice of short or no notice evictions demonstrates vulnerability of migrants in relation to housing, and the practice goes against the letter and spirit of section 26 of the Constitution. This practice can stop once landlords know that they can be held accountable for violating housing rights even if the same relate to irregular migrants.

85 The Malawi Housing Corporation is established under the Malawi Housing Corporation Act, Cap. 32:02 of the Laws of Malawi.

86 His full surname not stated here.


Another experience worth mentioning is that of xenophobia. One respondent, Andrew, who shares a rented room with friends in the CBD specifically indicated that he had to relocate, and forfeited some of his property, in the wake of the May 2008 xenophobic attacks:

[ Johannesburg] is my second choice because it’s where my other friends are but at first I was in Witbank. I came to Joburg due to the violence of last year in May. I left behind almost everything because we had to run. Several others indicated a general climate of fear in the wake of last year’s attacks. The prospect of further attacks of a similar nature leaves many migrants with a sense of heightened risk and vulnerability within their houses hence eroding the safety and dignity essential aspects of the right to housing.

6.9 Social assistance grants/provisions

Safety net grants, for purposes of the survey, included child protection grants, disability grants, old age grants and other direct financial or material provisioning from the State with regard to social security. In the South Africa context, these are generally provided for under section 4 of the Social Assistance Act of 2004. All of the grants mentioned in section 4 are tied to citizenship, and, with the decision in the Khosa case, they extend to permanent residents. However, there is provision for the Minister to make exceptions under section 5(1)(c) of the Act, with the concurrence of the Minister of Finance and extend the application of the Act to other groups or categories of persons. In addition, section 13 of the Act provides that the Minister may provide social relief of distress to a person who qualifies for such relief as may be prescribed. Again this provision is not couched in terms that restrict its application to citizens (and permanent residents).

In terms of the survey on this head, no respondent had been able to access the child support grants either in Malawi or South Africa. These provisions are simply not available in Malawi whether by requirement of law or through deliberate Government policy. It is worth mentioning however that under the Children and Young Persons Act,87 there is provision for what are referred to as Approved Schools that were set up to, among other things, provide for the reception, education and vocational training of children in need of care and protection.88 This is a form of social protection for children but it is noteworthy that access is very limited as there is only one such school at present.89 In South Africa, on the other hand, as shown above, the State has a scheme for the provision of social assistance grants such as the child support, disability and old age grants. Malawian (and other) migrants however, with the exception of permanent residents, are excluded from the scheme. In the survey herein, all the respondents stated that they did not and could not benefit from the social assistance schemes on account of nationality. Such exclusion is attributable to statutory requirements that limit the right to social security for everyone

87 Cap. 26:03 of the Laws of Malawi.88 ibid ss 34 and 35 of the Act.89 Chilwa Approved School in Zomba.


as guaranteed under section 27(1)(c) of the Constitution, by excluding all non-nationals apart from permanent residents from accessing these and other social security grants.90 In addition, the only permanent resident interviewed was a middle class income earner who did not qualify for the grants according to the means criteria for accessing the grants. No person with disabilities or an elderly person (of the age that qualified for such grants) was interviewed or responded to a questionnaire. However, a number of interviewees indicated that in so far as one does not have a South African ID, it is practically impossible for one to access any of the social security grants. However, as has been shown above, there are some flexibilities built into the Social Assistance Act based on which the Minister may make social protection provision for groups of migrants in need or in distress. It would appear that it was on the basis of these flexibilities that the South African Government made provision for the victims of the xenophobic attacks of 2008. However, the problem with reliance on such ministerial flexibility or discretion seems to be that it does not amount to a claimable right on the part of the migrants. It seems to be a measure that would be dependent on, amongst others, agitation from lobby groups.

In Malawi in comparison, as stated above, there is no scheme of social assistance grants for people with disabilities. However, under the Handicapped Persons Act, free education and vocational training is provided to people with disabilities under the auspices of the Malawi Council for the Handicapped (MACOHA) that is established under the Act. Upon completion of their training, MACOHA provides the trainees, when funds permit, with starter pack tool kits to assist them start small-scale skill-based businesses. This, it is submitted, is an important social protection measure for people with disabilities, which generally migrant workers with disabilities in South Africa might not get unless they acquire permanent residence status. The weakness with the MACOHA scheme is that it is rather irregular due to insufficient and unstable funding from Government. It would appear that a major problem is the lack of a rights-based approach to the importance of MACOHA on the part of the Malawi Government.

All in all, it would appear that formal social protection provisioning for Malawian migrants is almost as non-existent in practice in South Africa as it is in Malawi. The difference perhaps lies in the fact that the informal networks that provide informal social protection are more sustainable in Malawi due to a wider network of the extended family system, than they are in South Africa where the connection is largely community (nationality)-based rather than the stronger kin-based systems.

90 S 5(1)(c) of the Social Assistance Act 13 of 2004 provides that a ‘person is entitled to the appropriate social assistance if he or she is a South African citizen or is a member of a group or category of persons prescribed by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette.’ Further, in the Khosa case, the Constitutional Court invalidated legislative provisions that excluded permanent residents from accessing social security in South Africa, arguing that ‘[t]he Constitution vests the right to social security in “everyone”. By excluding permanent residents from the scheme for social security, the legislation limits their rights in a manner that affects their dignity and equality in material respects. Dignity and equality are founding values of the Constitution and lie at the heart of the Bill of Rights.’ – per Mokgoro J in the Khosa case par 85.


6.10 Social protection in situations of desperate need

Under this head, the study sought to find out whether the respondents were aware of any measures that the South African Government takes or might take in the event that they find themselves in circumstances of desperate need. None of the respondents indicated that they had access to any government safety net scheme designed to mitigate the impact of extreme poverty or any circumstances of desperate need in South Africa. Such situations include unemployment, homelessness, hospitalisation and funerals among others. The same was generally said about the respondent’s experiences in Malawi. As a way of dealing with this challenge, most of the respondents indicated that when such a situation occurs, or if it is to occur, they fall or would fall back on informal family or community networks of Malawians who normally help out until the situation improves. In the event of the problem persisting, e.g. unemployment of illness, the common practice, according to most interviewees, is to send them back to Malawi. This is consistent with Dekker’s assertion that informal social security is not in itself sustainably reliable and that it necessarily needs to be augmented with formal measures. Only a few respondents however indicated that they belonged to informal but well organised associations, to which they make regular modest contributions, and that adverse situations arise, these associations assist. Kenneth Mwale, working as a shop assistant in the CBD stated that “Hope Association [an informal association of Malawians] is responsible for my funeral cover. If I died, they can send the dead body home [to Malawi”’. Another migrant, Daison Musa who has been in South Africa for five years, stated, in respect of illnesses and deaths, that “with such problems, us as Muslims, Indians do all the processes”. John, a Tailor who has been in Johannesburg for the past eight years, stated that:

We assist each other as Malawians to take a sick person to hospital when they are sick, or if they are very ill, or death occurs, we also assist each other to send the dead body back home. We contribute money and other things.

A few others indicated that they would either rely on personal savings to deal with any such situation, or that they were not sure as to the strategy they would adopt in such a situation.

6.11 remittances and investments

The overwhelming majority of respondents indicated that they send money (remittances) to Malawi albeit at widely varying intervals ranging from monthly to yearly or upon request, among others. The money is sent for varying purposes including general support of their family members, paying school fees, buying food, buying farm inputs, particularly fertiliser, investment purposes such as buying land or building houses, maintaining savings in Malawi either to hedge against the prospect of deportation that normally results in migrants forfeiting all their property and savings in South Africa; whilst others were simply accumulating savings so that they would have finances to enable them pursue a decent livelihood upon return to Malawi since most of them did not have long-term


intentions of settling in South Africa. Chunga, a 31 year old man doing what he simply called ‘some piece work for a South African Business man’ and who, at the time of the interview had been in South Africa for only six months, stated that: ‘I am not going to stay in this country [South Africa] for many years. I am keeping some funds for business once [I am] off home [to Malawi]’. Another respondent, N. Banda, working as a domestic gardener in Mayfair similarly said that: ‘I send money as well as some material goods to my children and mother in Salima almost every two months. However, I have not acquired any property or made any other investment in Malawi yet, but maybe I will buy land when I go back home with the money I will have.’ The overall picture thus further exemplifies the fact that migration to South Africa is a well-established social protection strategy for many Malawians.

Sabates-Wheeler and Waite state that “[t]he economics of migration literature provides a framework for understanding how migration may be conceptualized as a social protection strategy. De la Briere et al develop two models, using insurance and investment as the two main alternative motivations for migrants to send remittances back to their families.”91 From the above findings on remittances, it is clear that the respondents are seeking to self-insure in the event of a shock such as sudden deportation; or to invest as a way reducing poverty and its associated vulnerabilities or simply to enhance their living standards.

6.12 Gender spread

Although a deliberate effort was made to strike a gender balance during the survey, the majority of women, whose numbers on the ground appeared almost equal to that of men, refused to be involved in the survey. They largely did not advance reasons for refusal, though a few indicated that they did not appreciate the importance of the exercise in their lives. It appears that these reasons might just be a tip of the iceberg and that there are likely to be deeper psychological or sociological reasons for this gender differential. The result is that the over-whelming majority of respondents/interviewees were men and relatively few women.

Unlike most men, most of whom worked as shop assistants, tailors and in some cases factory workers and general business entrepreneurs; most of the women respondents were either in the business of hairdressing (where self-employed) or domestic workers for middle to upper class South Africans, largely white South Africans. There was no observable education differential between men and women.

6.13 General standard of living

On the general question as to how their immigration to South Africa had generally impacted on their lives and those of their families in Malawi. The overwhelming response



was that the general result had been very positive, leading to a rise in the standards of living of the migrants and their families. The views expressed by Mrs Phiri who stays in Cresta and has been in South Africa for three years, are broadly representative of the nature of responses provided by many respondents. She said:

... as a result of coming to South Africa, I have experienced change from receiving little money [in Malawi]. Also, change has come to my parents because now they are able to have money to buy food. The community can witness development at my home since my parents are not begging anymore and have a good home.

This confirms the hypothesis that Malawian migrants generally come to South Africa to attain a better livelihood for themselves and their families.

7. CoNCLUSioN

This study has shown that the primary reason for the migration of most of the Malawian migrants in Johannesburg is the search for jobs and other economic opportunities. This is because for most of the migrants, they are either unable to find jobs or other economic opportunities in Malawi, or where they do, the financial returns are very negligible and not sufficient for dignified living. The study has also shown that most of the Malawian migrants are either unskilled or semi-skilled and thus very vulnerable to socio-economic shocks. This exposes them to risks that require proper social protection measures to hedge against. The study has further revealed that there are both institutionalised/formal as well as practical exclusions of Malawian migrants in Johannesburg from provision of basic social security. Institutionalised/formal exclusions are manifested through such schemes as the social assistance provisions for instance. Practical exclusions are manifested in areas such as access to public healthcare services and access to public education. The result is that migrants generally fall back on informal social assistance networks in order to survive in hard times. This is in sharp contrast with the experiences of these migrants when in Malawi, particularly in the areas of access to health and basic education. In the Khosa case, the Court recognized the existence of these informal social protection networks, stating that the exclusion of people “in need of social-security programmes forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa. These families or dependants …may be in need of social assistance themselves...”92 The Court further observed that the denial of the welfare benefits therefore impacts not only on those without other means of support, but also on the families, friends and communities with whom they have contact.93 The Court’s analysis seems to be clearly borne out by the survey findings as most of the people who provide welfare provisions in the event of a fellow migrant finding himself/herself in desperate need are themselves very low-income earners who are very vulnerable to socio-economic shocks and risks. There

92 See the Khosa case par 76.93 ibid.


is also extensive formal exclusion of these migrants from the provision of contingency-based assistance for the ultra poor/vulnerable, such as child support, disability and old-age grants; as well as social relief of distress. However, it was found that none of the respondents had access to these in Malawi either.

As a way of preventing threats to livelihood security, Malawian migrants generally tend to build social networks that provide a form of informal social insurance and or assistance. These, in the short term, seem to provide relatively effective coping social protection strategies in difficult times. They are however no sustainable in the long term. In addition, most of the migrants send remittances back to Malawi that serve various purposes. These include supporting family’s left behind, personal investments as a way to self-insure against the shock of deportation; and medium to long-term investments for the future. Thus this falls within Sabates-Wheeler’s paradigm of the dichotomous dimensions of social protection in the context of migration viz: migration as a phenomenon that exposes the migrant to risks and vulnerabilities necessitating appropriate hedges; and migration as a social protection strategy to reduce pre-existing poverty or economic related risks and vulnerabilities in home countries, in the instant case, Malawi.94

In relation to the above, the study found that for the majority of respondents, migration to South Africa had resulted in a significant promotion of their livelihoods and that the labour market in South Africa was wider and more rewarding than that in Malawi.

8. rECoMMENDAtioNS

It is clear that migration, particularly labour migration, from neighbouring countries into South Africa will remain a common phenomenon in Southern Africa. According to Landau, migration is a perennial and indelible part of the Southern African political economy.95. Further, as observed above, globalisation has increased significantly the number of people who migrate as a means of escaping poverty, unemployment and other social, economic and political pressures in their home countries.96 In addition “[t]he [sub-]region’s poverty and instability, combined with South Africa’s practical inability to close its borders, mean that further efforts to control or halt migration will drive the processes further underground, denying rights to asylum-seekers, criminalising other migrants, suppressing the price of labour and opening additional opportunities for exploitation, corruption and violence.”97


95 See Landau, L.B. “Regional Integration, Protection and Migration Policy Challenges in Southern Africa” in Handmaker J et al (eds.) Advancing Refugee Protection in South Africa 28.

96 See the Discovery Health case.97 See Landau, L.B. “Regional Integration, Protection and Migration Policy Challenges in Southern

Africa” in Handmaker J et al (eds.) Advancing Refugee Protection in South Africa.


Consequently, with the existing social protection framework in South Africa and the broader SADC region, there will always be people who are part of the labour force, including the self-employed, and who contribute to the economy, but remain excluded from formal social protection by reason of their status as immigrants, and frequently exacerbated by the irregular status of their residence. The result is that such people are consigned to informal avenues of social protection that are both insufficient and unsustainable. The solution is clearly regional rather than that of a single country, as the problem itself is equally regional. There is therefore need for SADC countries to come up with concerted measures to ensure effective social protection of migrants in the region. To this end it is recommended that:

SADC countries progressively move towards the elimination of barriers to free ��labour movement in the region. This will remove the stigma of illegality on intra-regional migrants and enable them to claim the labour protection that they need under applicable local labour and other laws. Further, as already indicated above, overly restrictive labour movement policies, as they still practically prove ineffective in curbing labour migration, serve the purpose of, among others, pushing the price of labour down and this prejudices local populations and fosters xenophobic attitudes.Within the spirit of the Charter of Fundamental Social Rights in SADC of 2003, ��SADC countries should take concrete and targeted steps towards harmonising programmes of social protection throughout the sub-region. A possibility would for instance be that whilst free movement of labour is ensured as recommended above, the fall back social protection responsibility in the event of socio-economic risks actualising remain that of the sending state as it were.There is need for some transformative measures to be taken in the social protection ��regime in Southern Africa that break the barriers of traditional perceptions of the status of migrants as being inferior and almost voiceless and defenceless people. Thus it is recommended that approaches such as that adopted by the Labour Court of South Africa in the Discovery Health case in enforcing the labour rights of legally unauthorised migrants, be adopted by institutions in the region as they are likely to transform the social protection plane of migrant workers in a significant way.There is need for SADC states to agree and harmonise their laws and practices relating ��to the portability of property rights and other proprietary interests of migrants upon return to their countries of origin, particularly as it relates to irregular migrants. This would help to ensure that they are not arbitrarily deprived of property simply by reason of irregular residence status.Wherever possible, bilateral agreements between governments be entered into in ��furtherance of the foregoing recommendations, pending their full embrace by the wider region. Thus the Government of Malawi in particular, as the sending state of migrants vis-à-vis the scope of this study, needs to be proactive in proposing effective ways of protecting the interests of its citizens, whilst at the same time co-operating


with the South African Government to reduce the incidence of illegal or irregular migration of Malawian citizens to South Africa.South Africa and Other SADC countries should ratify the International Convention ��on the Rights of all Migrant Workers and Members of their Families that spells out a number of guarantees relating to the social protection rights of migrants of all categories and their families. It is noteworthy that the Convention does not seek, as its object and purpose, to legitimise otherwise illegal residence of migrant workers in host countries, which is usually a major concern among countries, but it emphasises their rights. In the SADC region, only Lesotho has ratified the Convention.

There are also some country-specific measures that the South African Government might take to address some of the social protection exclusions that migrants face in the country:

With regard to exclusion from access to education, the South African Government ��should urgently institute an Inquiry into the question of the accessibility of basic education for migrant children in South Africa, with a view to ensuring that there is universal and compulsory basic education for all children as provided for in the Constitution, relevant legislation as well as international treaties such as the Convention on the Rights of the Child of 1989 (CRC).The Department of Education in particular, needs to launch public awareness ��campaigns emphasising that all children in South Africa, irrespective of status, are entitled to and must attend school, and that no child, in terms of the South African Schools Act, should fail to go access basic primary education on account of lack of funds.In relation to access to health, health authorities in South Africa should enhance ��civic awareness among healthcare personnel on the issue of the qualifying criteria for healthcare provision in respect of non-nationals. In addition, imposing administrative and other penalties for discriminatory or hostile conduct by healthcare personnel might also help in guarding against xenophobic attitudes and practices against non-nationals.Government should take reasonable concrete legislative and other measures to ��ensure that landlords know that they can be held accountable, and are in fact held accountable, for violating housing rights even if the same relate to irregular migrants.On social security, Government should immediately draw up a reasonable plan ��detailing the progressive steps it will take to ensure that everyone on South Africa enjoys the right to social security.


BiBLioGrAphY

Publications Belvedere F, Pigou P and Handmaker J

“Realising Rights: The Development of Health and Welfare Policies for Asylum-Seekers and Refugees in South Africa” in Handmaker J, de la Hunt LA and Klaaren J (eds.) Advancing Refugee Protection in South Africa (Berghahn Books 2008).

Bloch A “Gaps in Protection: Undocumented Zimbabwean Migrants in South Africa” (Migration Studies Working Paper Series No. 38) (Forced Migration Studies Programme July 2008).

Clark T “Human Rights and Expulsion: Giving Content to the Concept of Asylum” (1992) International Journal of Refugee Law Vol. 4 No. 2, 189-204.

Collinson M, Kok P and Ganenne M Migration and changing settlement patterns: Multilevel data for policy (Report 03-04-01) (Statistics South Africa 2006).

Consortium for Refugees and Migrants in South Africa (CoRMSA) Protecting Refugees, Asylum Seekers and Immigrants in South Africa (Publisher 2008).

Crush J “South Africa: Policy in the Face of Xenophobia” in MPI Country Profiles (2008), <http://www.migrationinformation.org/Profiles/display.cfm?id=689> (accessed on 12 November 2008).

Dekker AH Informal Social Security: A Legal Analysis (LLD Thesis – University of South Africa 2005).

Department of Welfare White paper for social welfare: principles, guidelines, recommendations, proposed policies and programmes for developmental social welfare in South Africa, <http://www.welfare.gov.za/documents/1997/wp.htm> (accessed on 12 March 2009).

Dorrington RE Projection of the Population of the City of Cape Town 2001-2021 (Report prepared for the Information and Knowledge Management Department, City of Cape Town) Centre for Actuarial Research, University of Cape Town, 2005.

Edillon RG “The Effects of Parent’s Migration on the Rights of Children Left Behind” (Asia Pacific Policy Center, UNICEF 2008).

Edwards A “Human Rights, Refugees, and the Right “To Enjoy” Asylum” (2005) 17 International Journal of Refugee Law 293.

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233CoDE oN SoCiAL SECUritY iN thE SADC

Appendix 2

CoDE oN SoCiAL SECUritY iN thE SADC

prEAMBLE

RECALLING the objectives of SADC as spelt out in Article 5 of the Treaty

FURTHER RECALLING the provisions contained in the Charter of Fundamental Social Rights in SADC, and the strategic direction outlined in the Regional Indicative Strategy Development Plan (RISDP)

NOW THEREFORE, SADC hereby adopts the following Code:

ArtiCLE 1: DEfiNitioNS

In this Code, unless the context indicates otherwise, the following terms shall have the meaning indicated below:

1.1 Social allowances: These are universal payments made to persons in designated categories who are exposed to exceptional need (such as children, older persons, persons with disabilities), designed to assist them in the realisation of their full potential. The objective of social allowances is social compensation. Social allowances are financed from government revenue and are not means-tested. They are paid to all persons falling within the designated categories, regardless of their socio-economic position.

1.2 Social assistance: This is a form of social security which provides assistance in cash or in kind to persons who lack the means to support themselves and their dependants. Social assistance is means-tested and is funded from government revenues. Normally, the beneficiaries are those who are not covered by any other form of social security. The objective of social assistance is to alleviate poverty through, amongst other things, the provision of minimum income support.

1.3 Social insurance: This is a form of social security designed to protect income-earners and their families against a reduction or loss of income as a result of exposure to risks. These risks impair one’s capacity to earn income. Social insurance is contributory with contributions being paid by employers, employees, self-employed persons, or other contributors, depending on the nature of the specific scheme. Social insurance is aimed at achieving a reasonable level of income maintenance.

1.4 Social protection: Social protection is broader than social security. It encompasses social security and social services, as well as developmental social welfare. Social


protection thus refers to public and private, or to mixed public and private measures designed to protect individuals against life-cycle crises that curtail their capacity to meet their needs. The objective is to enhance human welfare. Conceptually and for purposes of this Code social protection includes all forms of social security. However, social protection goes beyond the social security concept. It also covers social services and developmental social welfare, and is not restricted to protection against income insecurity caused by particular contingencies. Its objective, therefore, is to enhance human welfare.

1.5 Social security: This refers to public and private, or to mixed public and private measures, designed to protect individuals and families against income insecurity caused by contingencies such as unemployment, employment injury, maternity, sickness, invalidity, old age and death. The main objectives of social security are: (a) to maintain income, (b) to provide health care, and (c) to provide benefits to families. Conceptually and for the purposes of this Code, social security includes social insurance, social assistance and social allowances.

ArtiCLE 2: priNCipLES UNDErLYiNG thE proViSioNS of thE CoDE

2.1 This Code is mindful of and attempts to give expression to salient principles underlying the development of sound social security systems, with specific reference to SADC Member States.

2.2 The principles reflected in this Code, of which some are specifically SADC-related, include the following:(a) solidarity and redistribution;(b) variable geometry (the principle, according to the Regional Indicative Strategic

Development Plan (RISDP), where a group of Member States could move faster on certain activities and the experiences learnt are replicated in other Member States); and

(c) multi-actor responsibility (that is to say, social security provisioning is a function shared by governments, public social security institutions and private role-players, keeping in mind that governments bear the overall responsibility)

ArtiCLE 3: pUrpoSES

3.1 To provide Member States with strategic direction and guidelines in the development and improvement of social security schemes, in order to enhance the welfare of the people of the SADC region.

3.2 To provide SADC and Member States with a set of general principles and minimum standards of social protection, as well as a framework for monitoring at national and regional levels.


3.3 To provide SADC and Member States with an effective instrument for the coordination, convergence and harmonisation of social security systems in the region.

ArtiCLE 4: thE riGht to SoCiAL SECUritY

4.1 Everyone in SADC has the right to social security.4.2 Every Member State should establish and maintain a system of social security

in accordance with the provisions of this Code and Article 10 of the Charter of Fundamental Social Rights in SADC.

4.3 Every Member State should maintain its social security system at a satisfactory level at least equal to that required for ratification of International Labour Organisation (ILO) Convention Concerning Minimum Standards of Social Security No. 102 of 1952.

4.4 Every Member State should progressively raise its system of social security to a higher level, which should include achieving the meaningful coverage of everyone under the system, bearing in mind the realities and level of development in the particular Member State.

ArtiCLE 5: SoCiAL ASSiStANCE, SoCiAL SErViCES AND SoCiAL ALLoWANCES

5.1 Everyone in SADC who has insufficient means of subsistence to support themselves and their dependants should be entitled to social assistance, in accordance with the level of socio-economic development of the particular Member State.

5.2 Member States should provide an enabling environment for the provision of social services to both those individuals and groups in the community in need of welfare and development support. Member States should encourage the participation of individuals, civil society organisations, non-state actors and other non-governmental organisations in order to establish and maintain such services.

5.3 Member States are encouraged – where economically feasible – to provide social allowances to persons falling within designated categories in order to assist them in the realisation of their full potential.

ArtiCLE 6: SoCiAL iNSUrANCE

6.1 Each Member State should establish social insurance schemes and should progressively expand the coverage and impact of these schemes.

6.2 Member States should adopt relevant legislative and other measures in order to ensure the proper management and administration of these schemes.


6.3 Member States should provide fair and adequate social insurance benefits, commensurate with the contingency covered and with the nature and extent of the loss suffered.

6.4 Member States should extend social insurance coverage to the entire working population.

6.5 Member States should provide and regulate social insurance mechanisms for the informal sector.

6.6 Member States should encourage and regulate private and public sector participation, with regard to both the provision and management of social insurance, as well as the payment of social insurance benefits. Private sector participation can be either occupational-based or of an individual or group nature.

ArtiCLE 7: hEALth

7.1 Member States should ensure that adequate health care is available to everyone.7.2 Member States should provide curative, preventative and promotive medical care

and should ensure equity in access to health services.7.3 Member States are encouraged to develop and maintain viable public health

insurance schemes.7.4 Member States should promote, regulate and support the establishment of private

health insurance schemes, particularly in the absence of viable public health insurance schemes.

7.5 Member States should provide public health services for the benefit of the poor who are unable to contribute towards a public health insurance scheme or a private health insurance scheme.

7.6 In addition to medical care, Member States should provide appropriate sickness and invalidity cash benefits.

7.7 Member States are encouraged to promote and support micro-health insurance for the benefit of persons with low and unpredictable incomes, who are unable to participate in a public health insurance scheme or a private health insurance scheme.

7.8 Member States should put in place special measures to address the HIV/AIDS pandemic, bearing in mind the provisions of the Code on HIV/AIDS and Employment in SADC, the SADC HIV/AIDS Strategic Framework and the SADC (Heads of State) Declaration on HIV/AIDS (Maseru, 2003).

7.9 Member States should promote occupational health and safety in accordance with the provisions of this Code and the Charter of Fundamental Social Rights in SADC.

7.10 Member States should ensure that health care is provided in a professional, safe and ethical manner.


ArtiCLE 8: MAtErNitY AND pAtErNitY

8.1 Member States should ensure that women are not discriminated against or dismissed on grounds of maternity and that they enjoy the protection provided for in the ILO Maternity Protection (Revised) Convention No. 183 of 2000.

8.2 Member States should ensure that working conditions and environments are appropriate for and conducive to pregnant and nursing mothers.

8.3 Member States should progressively provide for paid maternity leave of at least 14 weeks and cash benefits of not less than 66% of income.

8.4 Member States are encouraged to provide for paternity leave in order to ensure that child rearing is a shared responsibility between father and mother.

ArtiCLE 9: DEAth AND SUrViVorS

9.1 Member States should ensure that social insurance schemes provide protection against the contingency of death.

9.2 The benefits payable in the event of death of a breadwinner should include a death grant, to assist with funeral costs and – subject to qualifying conditions – survivors’ benefits, which should be in the form of periodical payments, aimed at the upkeep of survivors.

9.3 Member States should ensure that legal dependants and, where justified, factual dependants, qualify as survivors.

ArtiCLE 10: rEtirEMENt AND oLD AGE

10.1 Bearing in mind the provisions of the Charter of Fundamental Social Rights in SADC, in particular article 8 of the Charter, Member States should aim to create an enabling environment that provides universal coverage for old people, through social assistance, social insurance or social allowances. Member States are urged to promote measures that would assist in maintaining human dignity, prevention of destitution and protection of the aged from abuse.

10.2 Member States should work towards the establishment of a minimum and maximum retirement age that takes into account the need to ensure an appropriate retirement benefit, as well as country specific considerations such as life expectancy, the HIV/AIDS pandemic and economic development.

10.3 Member States are encouraged to promote institutional, residential, community and home-based care for aged persons.

10.4 Member States should work towards the mandatory membership of and coverage in terms of retirement funds, whether public or private or both, as well as the compulsory preservation and transfer of retirement contributions and benefits.


10.5 Member States should aim at achieving equality of access, as well as the maintenance and aggregation of social security contributions and benefits and the aggregation of insurance periods on a cross-country basis among Member States, through national laws and bilateral and other arrangements.

10.6 Member States should promote the provision of social security benefits that provide for periodic pensions to be paid to the aged, rather than lump sum payments.

ArtiCLE 11: UNEMpLoYMENt AND UNDEr-EMpLoYMENt

11.1 Member States should ensure that those who are openly unemployed, including work-seekers and those who have been retrenched, as well as those who are undertaking employment or income-generating activities for survival purposes, are supported through at least the provision of social assistance, so as to enable them to live above poverty levels.

11.2 Member States should adopt proactive policies and measures towards inclusive economic and social development so as to eradicate poverty and eventually to absorb the majority of the labour force into productive employment and income–generating activities.

11.3 Member States should aim to progressively integrate the formal and non-formal aspects of social security (as they simultaneously seek to align these with) – and to integrate – formal and non-formal aspects of the economy, as a way of promoting inclusive social and economic development.

11.4 Member States should provide adequate protection against loss of employment, including protection against arbitrary and/or unfair dismissal.

11.5 Member States should provide adequate protection in the event of the unavoidable loss of employment. Bearing in mind the level of socio-economic development in a particular Member State, these forms of protection should include the payment of appropriate social insurance benefits, severance benefits and – in the event of employer insolvency or sequestration – specialised privileged status of employee claims and, where possible, the establishment of a wage guarantee fund.

ArtiCLE 12: oCCUpAtioNAL iNJUriES AND DiSEASES

12.1 Member States should provide compulsory coverage, either through public or private mechanisms or through a combination of both.

12.2 All modalities of disablement should be covered, irrespective of whether the disablement occurs in the formal or informal sector.

12.3 All occupational-related injuries and diseases should be covered.12.4 To the extent that use is made of a list of occupational-related diseases, the range of

diseases covered in such list should at least be in accordance with the list of diseases contained in the most recent ILO Convention on occupational health and safety.


12.5 Occupational injury and diseases schemes should provide adequate medical care and appropriate benefits.

12.6 Social security systems should provide for adequate rehabilitation and reintegration measures. Member States should ensure that appropriate preventative measures are in place.

ArtiCLE 13: GENDEr

13.1 Member States should ensure that there is equal coverage of and access to social security – including equality in receiving social security benefits – between men and women.

13.2 Member States should ensure that social security legislation in their respective countries is not gender-discriminatory and is aligned with the 1997 SADC Declaration on Gender and Development and the 1999 Plan of Action for Gender in SADC.

13.3 Member States should support gender sensitisation in the social security system, inclusive of addressing women’s special needs and circumstances, and introducing appropriate affirmative action programmes.

13.4 Member States should abolish all discriminatory laws, customs and practices in their respective social security systems.

13.5 Member States should introduce programmes and strategies for the eradication of poverty and the economic empowerment of women.

13.6 Member States should adopt and promote policies that ensure that workers, particularly female workers, are able to balance occupational and family obligations.

ArtiCLE 14: pEopLE With DiSABiLitiES

14.1 Member States are encouraged to create an enabling environment that would ensure that persons with disabilities, irrespective of the origin and nature of their disabilities or incapacities, are entitled to social security. In particular, Member States are encouraged to ensure that persons with disabilities benefit from social safety net mechanisms.

14.2 Member States should ensure that social security instruments guarantee equality of access and coverage to persons with disabilities.

14.3 Member States should promote the social and professional integration of persons with disabilities, through measures such as rehabilitation, vocational training, accessibility and mobility, means of transport and housing and the appropriate organisation of work and the working environment.

14.4 Member States should ensure that the special needs (including the need for assistive devices) and circumstances of persons with disabilities are provided for in national social insurance and social assistance instruments.


ArtiCLE 15: fAMiLY protECtioN

15.1 Member States should ensure that the family, as a fundamental unit of society, is appropriately protected. Member States should promote the economic, legal and social protection of family life.

15.2 Member States should ensure that social security systems and programmes reflect the reality and importance of the extended family. Member States should recognise and strengthen the extended family support system.

15.3 Member States are encouraged to provide a framework for the extension of appropriate family benefits, particularly to families in need and to dysfunctional family structures.

ArtiCLE 16: ChiLDrEN AND YoUNG pErSoNS

16.1 Member States should recognise and acknowledge the UN Convention on the Rights of the Child as the main source of children’s rights.

16.2 Member States should prevent child labour and child abuse, in accordance with United Nations and ILO Conventions.

16.3 Member States should ensure that sufficient protection is extended to children who are lawfully employed.

16.4 Member States should provide that the minimum employment age shall be 15 years, subject to exceptions for children employed in prescribed light work without harm to their health, morals or education.

16.5 Member States should provide that persons who are still subject to compulsory education should not be employed in such work as would deprive them of the full benefit of their education.

16.6 Member States should ensure that there is proper and adequate nutrition for children.

16.7 Member States should adopt measures that ensure protection against mental, physical and emotional abuse of youth and children.

16.8 Member States should provide adequate support to orphans and child-headed households, especially in relation to inheritance and family integration.

16.9 Member States should put in place effective measures and provision for adequate foster-care and adoption arrangements.

ArtiCLE 17: MiGrANtS, forEiGN WorKErS AND rEfUGEES

17.1 Member States should work towards the free movement of persons. Immigration controls should be progressively reduced.

17.2 Member States should ensure that all lawfully employed immigrants are protected through the promotion of the following core principles. These principles should


be contained in both the national laws of Member States and in bi- or multilateral arrangements between Member States:(a) Migrant workers should be able to participate in the social security schemes of

the host country.(b) Migrant workers should enjoy equal treatment alongside citizens within the

social security system of the host country.(c) There should be an aggregation of insurance periods and the maintenance of

acquired rights and benefits between similar schemes in different Member States.

(d) Member States should ensure the facilitation of exportability of benefits, including the payment of benefits in the host country.

(e) Member States should identify the applicable law for purposes of the implementation of the above principles.

(f) Member States should ensure coverage of self-employed migrant workers on the same basis as employed migrants.

17.3 Illegal residents and undocumented migrants should be provided with basic minimum protection and should enjoy coverage according to the laws of the host country.

17.4 The social protection extended to refugees should be in accordance with the provisions of international and regional instruments.

ArtiCLE 18: SpECiAL AND CoLLECtiVE CoNtiNGENCiES

18.1 Member States should ensure that their social security systems provide protection against special and collective risks, including political conflict and natural disasters.

18.2 Member States should provide for special interventionist approaches to disaster relief at regional and country level, including prevention, relief, reconstruction and rehabilitation.

18.3 Member States should ensure that protection is provided on an equitable basis.

ArtiCLE 19: prEVENtioN AND iNtEGrAtioN

19.1 Member States are encouraged to ensure that national social security systems adequately integrate sufficient preventative and reintegrative measures and are not primarily compensation-focused.

19.2 Reintegrative measures should be aimed at ensuring that those persons affected by a risk-creating situation are meaningfully integrated, at least socially, and in the labour market, in order to encourage self-reliance and to support their human dignity.

19.3 Member States should collectively and individually ensure that their social security systems adequately provide for the prevention of social risks that affect communities


within and across the borders of Member States, and should also provide for effective measures of relief, rehabilitation, re-construction, reintegration and revival for communities so affected.

ArtiCLE 20: SoCiAL protECtioN frAMEWorK

20.1 Member States should recognise the links between social and economic development and should accordingly seek to ensure that social security policies and economic development policies are formulated in a complementary, integrated and mutually reinforcing manner.

20.2 Member States should recognise that social security operates within the broader social protection framework of both direct and indirect measures and should, thus, accordingly ensure that indirect forms of support, such as those related to health, education, transport, housing, water and electricity, complement direct forms of social security.

20.3 Member States should recognise the existence of informal modes of social security and should seek to strengthen and rationalise them (by, for example, providing skills training and relevant forms of support) and to integrate them with formal modes of social security.

20.4 Member States should aim at developing integrated and comprehensive social security protection which encompasses co-ordinated formal and non-formal types and direct and indirect forms of social support.

ArtiCLE 21: iMpLEMENtAtioN AND MoNitoriNG

21.1 Member States should endeavour to establish proper administrative and regulatory frameworks in order to ensure effective and efficient delivery of social security benefits, in particular:(a) integrated, inter-departmental and inter-sectoral structures with adequate and

sufficient budgetary support;(b) easy access for everyone to independent adjudication institutions that have the

power to finally determine social security disputes, inexpensively, expeditiously and with a minimum of legal formalities;

(c) sustainable social security provisioning linked to economic policy;(d) preference for most vulnerable groups in the provision of social security

benefits;(e) apart from the utilisation of national tripartite and regional structures, every

effort should be made to involve civil society and other non-state entities such as NGOs and CBOs in the formulation, implementation and monitoring of social security policies; and


(f) improved monitoring and sound governance structures independent of social security providers to ensure the protection of members, autonomous decision-making and sound investment, among other requirements.

21.2 Member States and the relevant SADC structures should establish mechanisms both at the national and SADC levels to monitor progressive compliance with the provisions of this Code

21.3 The Integrated Committee of Ministers should establish an Independent Committee of Experts within the relevant SADC structures to monitor compliance with the Code and to make recommendations to the relevant SADC structures and the respective national structures on the progressive attainment of its provisions.

21.4 The Committee should consist of no less than seven members and no more than twelve members.

21.5 Members of the Committee should be appointed in their personal capacities and shall be persons of integrity and proven relevant expertise.

21.6 In appointing members of the Committee, account should be taken of the need for equitable representation in terms of gender, disability, areas of expertise and broad geographical distribution.

21.7 Members of the Committee should be appointed for a once-off renewable period of six years.

21.8 In order to ensure continuity, staggered appointments should be made.21.9 In the event of a position becoming vacant on the Committee, a new member

should be appointed for the remainder of the vacant term.21.10 The Code will be reviewed and amended from time to time as and when it is

deemed necessary.

245ChArtEr of fUNDAMENtAL SoCiAL riGhtS iN SADC

Appendix 3

ChArtEr of fUNDAMENtAL SoCiAL riGhtS iN SADC

prEAMBLE

WE, the Heads of State or Government of:

The Republic of AngolaThe Republic of BotswanaThe Democratic Republic of CongoThe Kingdom of LesothoThe Republic of MalawiThe Republic of MauritiusThe Republic of MozambiqueThe Republic of NamibiaThe Republic of SeychellesThe Republic of South AfricaThe Kingdom of SwazilandThe United Republic of TanzaniaThe Republic of ZambiaThe Republic of Zimbabwe

RECALLING the objectives of SADC as spelt out in Article 5 of the Treaty;

FURTHER RECALLING that the SADC Council of Ministers approved the main objectives of the SADC Employment and Labour Sector;

NOW THEREFORE, SADC hereby adopts the following Charter:

ArtiCLE 1: DEfiNitioNS

In this Charter, terms and expressions defined in Article 1 of the Treaty establishing 1. SADC shall bear the same meaning unless the context otherwise requires.

2. In this Charter, unless the context otherwise requires: “Charter”�� means this Charter of Fundamental Social Rights in SADC; “consultation”�� means a process of discussion which involves information sharing, and the making of representations on relevant issues with a view to achieving consensus;


“essential services”�� has the meaning assigned to it under national legislation and consistent with international labour standards; “international instrument”�� means any international treaty, declaration, recommendation, or relevant international agreement in the social, human rights and labour fields subscribed to by Member States; “ILO”�� means the International Labour Organisation; and “social partners”�� means Governments, representative organisations of workers and representative organisations of employers in respective Member States.

ArtiCLE 2: oBJECtiVES of thE ChArtEr

The objective of this Charter shall be to facilitate, through close and active 1. consultations among social partners and in a spirit conducive to harmonious labour relations, the accomplishment of the following objectives: (a) ensure the retention of the tripartite structure of the three social partners,

namely: governments, organisations of employers and organisations of workers;

(b) promote the formulation and harmonisation of legal, economic and social policies and programmes, which contribute to the creation of productive employment opportunities and generation of incomes, in Member States;

(c) promote labour policies, practices and measures, which facilitate labour mobility, remove distortions in labour markets and enhance industrial harmony and increase productivity, in Member States;

(d) provide a framework for regional co-operation in the collection and dissemination of labour market information;

(e) promote the establishment and harmonisation of social security schemes; (f) harmonise regulations relating to health and safety standards at work places

across the Region; and (g) promote the development of institutional capacities as well as vocational and

technical skills in the Region. 2. It shall be the responsibility of Governments to create an enabling environment in

order that objectives referred to in paragraph 1 of this Article are realised.

ArtiCLE 3: BASiC hUMAN riGhtS AND orGANiSAtioNAL riGhtS

This Charter embodies the recognition by governments, employers and workers in 1. the Region of the universality and indivisibility of basic human rights proclaimed in instruments such as the United Nations Universal Declaration of Human Rights,


the African Charter on Human and Peoples’ Rights, the Constitution of the ILO, the Philadelphia Declaration and other relevant international instruments.

2. Member States undertake to observe the basic rights referred to in this charter.

ArtiCLE 4: frEEDoM of ASSoCiAtioN AND CoLLECtiVE BArGAiNiNG

Member States shall create an enabling environment consistent with ILO Conventions on freedom of association, the right to organise and collective bargaining so that:

(a) employers and workers of the Region shall have the right to form employers associations or trade unions of their choice for the promotion and defence of their economic and social interests;

(b) every employer and every worker shall have the freedom to join or not to join such employers associations or trade unions without any personal or occupational damage being thereby suffered by him or her;

(c) employers associations and trade unions shall have the right to negotiate and conclude collective agreements under the conditions laid down by national legislation and practice;

(d) the industrial disputes settlement machinery and method of operation shall be autonomous, accessible, efficient and subject to tripartite consultation and in agreement with guaranteed right of recourse to established appeals or review procedures;

(e) the right to resort to collective action in the event of a dispute remaining unresolved shall: (i) for workers, include the right to strike and to traditional collective

bargaining; (ii) for employers, include traditional collective bargaining and remedies

consistent with ILO instruments and other international laws; (f) organisational rights for representative unions shall include:

(i) the right of access to employer premises for union purposes subject to agreed procedures;

(ii) the right to deduct trade union dues from members’ wages; (iii) the right to elect trade union representatives; (iv) the right to choose and appoint full time trade union officials; (v) the right of trade union representatives to education and training leave; and (vi) the right of the trade unions to disclosure of information;

(g) essential services and their parameters shall mutually be defined and agreed upon by governments, employers associations and trade unions;


(h) due to the unique nature of essential services, appropriate and easily accessible machinery for quick resolution of disputes shall be put in place by governments, employers and trade unions;

(i) freedom of association and collective bargaining rights shall apply to all areas including export-processing zones.

ArtiCLE 5: CoNVENtioNS of thE iNtErNAtioNAL LABoUr orGANiSAtioN

For the purposes of attaining the objectives of this Charter:

(a) Member States shall establish a priority list of ILO Conventions which shall include Conventions on abolition of forced labour ( Nos. 29 and 105), freedom of association and collective bargaining (Nos. 87 and 98), elimination of discrimination in employment (Nos. 100 and 111), and the minimum age of entry into employment (No. 138) and other relevant instruments;

(b) Member States shall take appropriate action to ratify and implement relevant ILO instruments and as a priority the core ILO Conventions; and

(c) Member States shall establish regional mechanisms to assist Member States in complying with the ILO reporting system.

ArtiCLE 6: EqUAL trEAtMENt for MEN AND WoMEN

Member States shall create an enabling environment consistent with ILO Conventions on discrimination and equality and other relevant instruments so that:

(a) gender equity, equal treatment and opportunities for men and women are ensured;

(b) equal opportunities for both men and women shall apply, in particular, to access to employment, remuneration, working conditions, social protection, education, vocational training and career development; and

(c) reasonable measures are developed to enable men and women to reconcile their occupational and family obligations.

ArtiCLE 7: protECtioN of ChiLDrEN AND YoUNG pEopLE

Member States shall create an enabling environment consistent with the ILO Convention on the minimum age of entry into employment (No 138) or any other relevant international instrument so that:

(a) without prejudice to such rules as may be more favourable to young people in particular those ensuring their preparation for work through vocational training, and subject to derogation limited to certain light work, the minimum


employment age must not be lower than the minimum school leaving age and in any case, not lower than that set out in the ILO Convention No.138;

(b) employers shall be liable for employment practices of adult employees that lead to the indirect employment of children;

(c) young people who are in gainful employment shall receive an equitable remuneration in accordance with national law and practice;

(d) appropriate measures shall be taken to adjust labour regulations applicable to young workers so that their specific development and vocational training and access to employment needs are met;

(e) the duration of work for young people shall be limited, and shall not be resorted to, save in the case of certain jobs laid down in national laws or regulations; and

(f) young people shall be entitled to receive initial vocational training of a sufficient duration to enable them to adapt to the requirement of their future working life and for young workers, the training shall take place during normal working hours.

ArtiCLE 8: ELDErLY pErSoNS

Member States shall endeavour to create an enabling environment in accordance with arrangements applying to each Member State so that:

(a) every worker in the Region shall at the time of retirement enjoy resources affording him or her a decent standard of living, including equity in post employment security schemes;

(b) every worker who has reached retirement age but who is not entitled to a pension or who does not have other means of subsistence shall be entitled to adequate social assistance to cater specifically for basic needs including medical care; and

(c) employment after the normal retirement period shall be under the same labour standards and rates of remuneration that apply to all workers.

ArtiCLE 9: pErSoNS With DiSABiLitiES

9.1 Member States shall create an enabling environment such that all persons with disabilities, whatever the origin and nature of their disability, shall be entitled to additional concrete measures aimed at improving their social and professional integration.

9.2 The measures shall relate to, in particular, according to the capacities of beneficiaries, vocational training, accessibility and mobility, means of transport and housing and appropriate organisation of work and workplaces to take into account their needs.


ArtiCLE 10: SoCiAL protECtioN

10.1 Member States shall create an enabling environment so that every worker in the Region shall have a right to adequate social protection and shall, regardless of status and the type of employment, enjoy adequate social security benefits.

10.2 Persons who have been unable to either enter or re-enter the labour market and have no means of subsistence shall be entitled to receive sufficient resources and social assistance.

ArtiCLE 11: iMproVEMENt of WorKiNG AND LiViNG CoNDitioNS

Member States shall create an enabling environment so that:

(a) harmonisation of minimum requirements laid down in labour legislation and in particular the introduction of equitable basic working and living conditions, the specifications of minimum rest periods, annual paid leave, compassionate leave, paid maternity leave, occupational health and safety protection, and stipulation of acceptable rules and compensation for overtime and shift work, are achieved;

(b) every worker in the Region shall have a right to a weekly rest period and annual paid leave, the duration of which must be progressively harmonised in accordance with the national practice; and

(c) the conditions of employment for every worker in the Region shall be stipulated in national law, a collective agreement or a contract of employment.

ArtiCLE 12: protECtioN of hEALth, SAfEtY AND ENViroNMENt

Member States shall endeavour to create an enabling environment so that:

(a) subject to paragraphs b) to g), every worker in the Region has the right to health and safety at work and to a healthy and safe environment that sustains human development, access to adequate shelter;

(b) employers shall provide safe workplaces that do not pose a risk to the health of employers or any other person exposed;

(c) basic work environment and occupational health and safety standards as set out in ILO Convention No. 155 are provided;

(d) engineering is prioritised to control risk from hazards at source;

(e) the organisation of occupational health and safety shall be on the basis of bipartite and tripartite co-operation and the full participation of all parties;


(f) workers have a right to information on workplace hazards and the procedures being taken to address them, and to appropriate health and safety training in paid working time;

(g) workers have the right to stop work that they reasonably believe poses an immediate and serious risk to their health, safety or physical well being according to ILO Convention No. 155;

(h) workers have the right to services, that provide for the prevention, recognition, detection and compensation of work related illness or injury, including emergency care, with rehabilitation and reasonable job security after injury and adequate inflation adjusted compensation;

(i) employers control and are liable for work related environmental risks according to the “polluter pays” principle;

(j) workplace bases health service for workers is accessible, affordable and equitable, and is provided on a professional ethical basis; and

(k) economic and investment measures take into consideration health, safety and environmental standards.

ArtiCLE 13: iNforMAtioN, CoNSULtAtioN AND pArtiCipAtioN of WorKErS


(a) industrial and workplace democracy is promoted; (b) workers shall have the right to information, consult and participate particularly

in the following cases: (i) when technological changes which, from the point of view of working

conditions, have major implications for the work force are introduced into undertakings;

(ii) in connection with the restructuring operations in the undertakings having an impact on the employment of workers;

(iii) in connection with social responsibility or other outreach programmes carried out by the community;

(c) information, consultation and participation of workers is developed along appropriate lines and similar practices are encouraged in all Member States;

(d) information, consultation and participation applies especially in companies or groups of companies having establishments or companies in two or more Member States in the Region.


ArtiCLE 14: EMpLoYMENt AND rEMUNErAtioN


(a) every individual shall be free to choose and engage in an occupation or that person’s choice;

(b) workers are provided with fair opportunities to receive wages which provide for a decent standard of living;

(c) remuneration systems in the Member States encourage the progressive establishment of equitable wage rates across the Region in accordance with arrangements applying in each Member States; and

(d) workers, subject to terms of employment other than full-time contracts, shall benefit from an equitable current rate.

ArtiCLE 15: EDUCAtioN AND trAiNiNG

Member states shall create an enabling environment consistent with ILO Convention on paid education and training (No 140) so that:

(a) government, employers and trade unions contribute towards workers education, training and skills development; and

(b) all workers have the right to paid study leave subject to the provisions of the ILO Convention and to a collective agreement.

ArtiCLE 16: iMpLEMENtAtioN of thE ChArtEr

16.1 The responsibility for the implementation of this Charter lies with the national tripartite institutions and regional structures.

16.2 The institutions and structures referred to in paragraph 1 shall promote social legislation and equitable growth within the Region and prevent non-implementation of this Charter.

16.3 All Member States shall submit regular progress reports to the Secretariat.

16.4 The most representative organisation of employers and workers shall be consulted in the preparation of the reports referred to in paragraph 3.

ArtiCLE 17: ENtrY iNto forCE

This Charter shall enter into force upon signature by the Member States.


ArtiCLE 18: AMENDMENtS of thE ChArtEr

18.1 An amendment to this Charter shall be adopted by a decision of three-quarters of the Member States.

18.2 A proposal for the amendment to this Charter may be made to the Secretariat by any Member State for preliminary consideration by the social partners provided that the proposed amendment shall not be submitted for preliminary consideration until all Member States have been duly notified of it and a period of three months has elapsed after such notification.

IN WITNESS WHEREOF, WE the Heads of State or Government, or duly authorised Representatives of SADC Member States, have signed this Charter.

DONE at Dar es Salaam on this ________ day of August 2003, in three (3) original texts, in the English, French and Portuguese Languages, all texts being equally authentic.

REPUBLIC OF ANGOLA REPUBLIC OF BOTSWANA DEMOCRATIC REPUBLIC OF CONGO KINGDOM OF LESOTHO REPUBLIC OF MALAWI REPUBLIC OF MAURITIUS REPUBLIC OF MOZAMBIqUE REPUBLIC OF NAMIBIA REPUBLIC OF SEYCHELLES REPUBLIC OF SOUTH AFRICA KINGDOM OF SWAZILAND UNITED REPUBLIC OF TANZANIA REPUBLIC OF ZAMBIA REPUBLIC OF ZIMBABWE

255

Appendix 4

pEEr rEViEW rEport 1

10 June 2011

Name and institutional affiliation of the assessorProf. E. KasekeProfessor of Social WorkDepartment of Social WorkSchool of Human and Community DevelopmentUniversity of the Witwatersrand

Title of the book

ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL BENEfitS WithiN thE SoUthErN AfriCAN DEVELopMENt CoMMUNitY

AuthorsMpedi, L.G. & Smit, N. (Eds.)

1. A brief assessment of the book and its contribution as a research output

The book focuses on topical issues in social security, namely access to social services for non-citizens and portability of social benefits. Although these issues are topical globally, the book focuses on the Southern African Development Community (SADC). These issues are very pertinent in SADC given the increased cross-border movement of people in the region. As a result many of the SADC Member States host large numbers of non-citizens. This book is an outcome of a study on access to social services, mainly social security for non-citizens and the portability of social benefits in selected SADC Member States. The study was able to build on a previous World Bank study on the same issues in selected SADC Member States. Although the book does not cover every SADC Member State, it manages to cover the majority of the countries. It is thus able to provide a SADC wide picture. The book makes an important contribution to our understanding of the social security and social protection landscape in SADC with particular reference to issues of access to social services for non-citizens and portability of social benefits. The book draws our attention to gaps that exist with respect to the social protection of non-citizens in SADC. It is thus a resource that can be utilised by social protection experts and policy makers to streamline and strengthen policies on social protection.


2. An indication that the book disseminates original research and new developments in the relevant field around the world

This book disseminates original research on a topical area. The book’s strength lies in the fact that it provides a systematic and comprehensive comparative analysis of the position of non-citizens in the different SADC Member States. It locks on to the global discourse on social protection as a basic human right. This book will in no doubt promote debate on the human rights perspective to social protection in SADC and will help to ensure that the right to social protection is also extended to non-citizens.

3. An indication that the target audience of the book are specialists/peers in the relevant field and that it is not merely a textbook or a popular book intended for the general public.

The book is targeted at specialists/peers in the field of social protection. It sharpens the discourse on social protection and provides specialists in social protection with empirical data on the social protection landscape in SADC with particular reference to the position of non-citizens. The publication is well placed to inform policy making in the region. The book is thus not intended for the general public.

4. Are there any suggested improvements/revisions necessary to the manuscript?

While the book is solid as it is, it can still be strengthened further. I would like to suggest that the recommendations in chapter one be transferred to the end of the book. In my opinion, there is need for a chapter that focuses on conclusions and recommendations which pulls everything together. As it is, the last chapter does not give the book a sense of finality.

257

Appendix 5

pEEr rEViEW rEport 2

12 May 2011

Name and institutional affiliation of the assessor: Prof. E.R. Kalula Professor and Director, Institute of Development and Labour Law, University of Cape Town

Title of the book:

ACCESS to SoCiAL SErViCES for NoN-CitiZENS AND thE portABiLitY of SoCiAL SErViCES WithiN thE SoUthErN AfriCAN DEVELopMENt CoMMUNitY

Authors: Mpedi L.G. and Smit N. (Eds.)

1. A brief assessment of the book and its contribution as a research output

The Southern Africa region has a relatively long history of labour migration. In spite of this long standing mobility which has been a major feature of the region’s economies, hardly any systematic policy and empirical research has been undertaken on some of the most critical social aspects of the migration and its consequences, namely access, portability and inclusion of migrants in the different jurisdictions of the Southern African Development Community (SADC). This study seeks to explore and analyse the issues of access to and portability of particular social services and other forms of social security benefits for migrants living and working in the SADC region. The study also assesses the effectiveness of formal social protection provisions and considers possible linkages between citizenship, human rights and inclusion, among other aspects. It thus draws out the implications of such linkages for social protection policies in the SADC region. Of further significance are the interviews conducted with some migrants to get their perspectives on overall social protection strategies, particularly on informal social protection. The major contribution of this study as a research output lies in the new knowledge and the analysis it provides in this critical area of social protection.


2. An indication that the book disseminates original research and new developments in the relevant field around the world

This study is a first for the SADC region in the field of social protection. It is the first time that systematic research has been conducted by way of a synthesis of existing frameworks and specific situations of access to and portability of social benefits in a number of SADC jurisdictions. The overall synthesis and individual contributions in the jurisdictions covered analyse both legal and policy frameworks. This is original research not only in terms of the analysis of the empirical situations but also locating the contributions in sound conceptual and theoretical frameworks of social protection. The study also draws on and high lights two important SADC instruments, the Code on Social Security and the Charter of Fundamental Social Rights. This is definitely a dissemination of original research drawing on relevant developments.

3. An indication that the target audience of the book is specialists/peers in the relevant field and that it is not merely a textbook intended for the general public

Although the intelligent lay person will find this study useful in the information it provides, it is definitely not a textbook or intended for the general public. The text is intended for social protection specialists and high-level policy makers. The study high lights issues and areas of policy that are currently barriers to access to and portability of social benefits in many SADC jurisdictions. In so doing, the contributions seek to engage further comparative scholarship not only in the SADC region but further afield. The study will likely appeal to scholars of comparative social protection and those engaged in policy reform in this field.

4. Are there any suggested improvements/reviews necessary to the manuscript?

In terms of the brief of the study project, it has fully achieved what it set out to do. However, not all jurisdictions in the SADC region are covered and it is therefore not complete to that extent. Adding other jurisdictions not considered would definitely enhance our understanding of what the situation of access to and portability of social security benefits is across the entire SADC region. Consideration could also be given to developing model legislative provisions and code of practice along the lines of the SADC Code of Social Security.

This book explores the issues of access to particular social services and forms of social security and portability of social protection benefits for migrants living and working in the Southern Africa Develop ment Community (SADC) region. In addition, the research assesses the effectiveness of formal social protection provisions and considers the linkages between citizenship, human rights, empowerment and inclusion with their implications for social protection policies in SADC. Finally, interviews with SADC migrants in South Africa provide perspectives on their social protection strategies, with a focus on informal social protection strategies.


■ make a significant contribution towards evidence-based policy making in SADC as it identifies problems and gaps in social protection for migrants in that region;

■ empower migrants by voicing their challenges and contribute to the regional policy dialogue and understanding of intra-SADC migration, citizenship, inclusion and human rights; and

■ enhance policy-making on social protection for migrants by increasing awareness of and informing country-specific and regional policies on migration, and labour market integration.

EDITORS

Access to Social Services for N

on-Citizens and the Portability of Social Benefits w

ithin the Southern A

frican Developm

ent Comm

unity

Access to Social Services for Non-Citizens and

the Portability of Social Benefits within the Southern African

Development Community

Letlhokwa G

eorge Mpedi

& N

icola Smit

EDITORSLETLHOKWA GEORGE MPEDI & NICOLA SMIT

Letlhokwa George Mpedi is a Co-Director of the Centre for International and Comparative Labour and Social Security Law (CICLASS) and a Professor in the Department of Mercantile Law at the Faculty of Law of the University of Johannesburg. He lectures Labour Law and Social Security Law to LLB, post-graduate and certificate students. Prof Letlhokwa George Mpedi completed his B Juris and LLB degrees at Vista University; the LLM degree in Labour Law at Rand Afrikaans University (now University of Johannesburg) and the LLD degree in Mercantile Law at the University of Johannesburg.

Nicola Smit is a Co-Director of the Centre for International and Comparative Labour and Social Security Law (CICLASS) and a Professor in the Department of Mercantile Law at the Faculty of Law of the University of Johannesburg. She specialises in Labour Law and Security Law and lectures labour law and social security law to LLM, LLB, post graduate diploma and certificate students. She obtained the LLD degree from the Rand Afrikaans University (now University of Johannesburg) as well as the BLC (cum laude) and LLB (cum laude) from the University of Pretoria. She is a co-editor and co-author of various publications, including Social Security: A Legal Analysis (2003), Introduction to Social Security (2004) and Law@work (2008).

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