Foreigners’ Rights to Work and Fair Labour Practices in South Africa : a review of the South African Labour Legislation and Jurisprudence

• Author: André Mbata Mangu
• DOI: 10.25159/2522-6800/5093
• Published date: 01 October 2020
• Date: 01 October 2020
• Pages: 1-19

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/5093

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 35 | Number 1 | 2020 | #5093 | 19 pages

© Unisa Press 2020

Foreigners’ Rights to Work and Fair Labour

Practices in South Africa: A Review of the South

African Labour Legislation and Jurisprudence

André Mbata Mangu

https://orcid.org/0000-0002-8494-3991

Research Professor, University of South Africa, South Africa

Manguamb@unisa.ac.za

Abstract

After several decades of apartheid rule, which denied human rights to the

majority of the population on the ground of race and came to be regarded as a

crime against humanity, South Africa adopted its first democratic Constitution

in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim

Constitution, is considered one of the most progressive in the world. In its

founding provisions, it states that South Africa is a democratic state founded on

human dignity, the achievement of equality, the advancement of human rights

and freedoms. The Constitution enshrines fundamental human rights in a

justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the

eyes of a number of politicians, officials and lay-persons, the rights in the Bill

of Rights accrue to South African citizens only. Xenophobia, which has been

rampant since the end of apartheid, seems to support the idea that foreigners

should not enjoy these rights. Foreign nationals have often been accused of

posing a threat to South African citizens with regard to employment

opportunities. In light of the South African legislation and jurisprudence, this

article affirms the position of the South African labour law that foreign nationals

are indeed protected by the Constitution and entitled to rights in the Bill of

Rights, including the rights to work and fair labour practices.

Keywords: Constitution; human rights; fair labour practices; foreigners; foreign

workers’ rights; labour legislation; South Africa

Mangu

2

Introduction

The struggle against apartheid was predominantly a struggle for human rights in South

Africa. This struggle received a major boost from the international community when the

General Assembly (GA) of the United Nations (UN) adopted the Universal De claration

of Human Rights (UDHR)1 and several other international instruments, including the

International Covenant on Civil and Political Rights (ICCPR),2 the International

Covenant on Economic, Social and Cultural Rights (ICESCR),3 and most importantly,

the International Convention on the Suppression and Punishment of the Crime of

Apartheid,4 which declared apartheid a ‘crime against h umanity’ as it denied human

rights to the majority of the population on the ground of race.

As domestic and international pressure intensified in the 1980s, the ruling National

Party (NP) announced the unbanning of anti-apartheid organisations and the release of

political prisoners. On 11 February 1990, Nelson Mandela was set free after twenty-

seven years of imprisonment. Mandela’s release was a turning point in the struggle

against apartheid. Under Mandela’s leadership, the African National Cong ress (ANC)

and other anti-apartheid movements embarked on official talks with the NP in order to

heal the divisions of the past and lay the foundations for a democratic and open society.

The negotiations between the parties resulted in the adoption of an interim

Constitution,5 which marked the official end of and paved the way for the first multi-

racial and democratic elections in April 1994. The ANC won these elections and Nelson

Mandela became South Africa’s first black and democratically elected presiden t.

In 1995, the Labour Relations Act (LRA)6 was passed to give effect to the rights set out

in section 27 of the Interim Constitution and to establish the Labour Court and the

Labour Appeal Court with exclusive jurisdiction to decide matters arising from the Act.

As a member state of the International Labour Organisation (ILO), 7 South Africa is

1 UDHR was proclaimed by the UNGA in Paris on 10 December 1948 (GA Res 217(III) <http:

//www.un.org/en/universal-declaration-human-rights/index.html> accessed 5 August 2016.

2 ICCPR was adopted and opened for signature, ratification and accession by GA Res 2200A (XXI) of

16 December 1966. It entered into force on 23 March 1976

<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> accessed 5 August 2016.

3 ICESR was adopted and opened for signature, ratification and accession by GA Res 2200A (XXI) of

16 December 1966. It entered into force on 3 January 1976

<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> accessed 5 August 2016.

4 Adopted by the UNGA on 30 November 1973. It came into force on 18 July 1976

<https://treaties.un.org/doc/Publication/UNTS/Volume%201015/volume-1015-I-14861-English.pdf>

accessed 5 August 2016.

5 Constitution of the Republic of South Africa, Act 200 1993

<http://www1.chr.up.ac.za/chr_old/indigenous> accessed 30 June 2016.

6 LRA Act 66 1995. At http://www.acts.co.za/labour-relations-act-1995/index.html (accessed 15 June

2016). Labour Relations Act as amended by Labour Relations Amendment Act (LRAA) 42 1996,

LRAA 66 1996 LRAA 127 1998; LRAA 12 2002.

7 <http://www.ilo.org/global/about-the-ilo/lang--en/index.htm> accessed 5 August 2016.