1 Olivier, MP “Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements within a multilateral framework (part I)” (2011) 1/1SADC Law Journal 121 at 123Google Scholar.

2 According to Pendleton, W, Crush, J, Campbell, E, Green, T, Simelane, H, Tevera, D and de Vletter, F “Migration, remittances and development in southern Africa” (2006) Migration Policy Series (Southern African Migration Project and Institute for Democracy in Africa) no 44 at 3Google Scholar, “South Africa plays a central role in the cross-border migration picture with 86% of the total number of migrants [in the southern Africa region] currently working there”. This report resulted from a migration and remittances survey conducted by the Southern African Research Centre (Queen's University) and forms part of volume of the Migration Policy Series. Five southern African countries were covered by this study, namely Botswana, Lesotho, Southern Mozambique, Swaziland and Zimbabwe.

3 Art 2(1) of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (the International Convention on Migrant Workers), adopted by GA res no 45 of 158 on 18 December 1990, defines a migrant worker as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”.

4 Mpedi, LG and Smit, NAccess to Social Services for Non-Citizens and the Portability of Social Benefits within the Southern African Development Community (2011, Sun Press) at 3Google Scholar.

5 Dupper, O “Migrant workers and the right to social security: An international perspective” (2007) Stellenbosch Law Review 219 at 223Google Scholar refers to Taran, PA “Human rights of migrants: Challenges of the new decade” (2000) International Migration 7, who mentions (at 23)Google Scholar that the term “illegal migrants” associates migrants with “criminality, unemployment, disease and other social ills”. Art 5 of the International Convention on Migrant Workers states: “For the purposes of the present Convention, migrant workers and members of their families: (a) Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment …; (b) Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.”

6 Many migrants are at the bottom of the employment ladder, doing jobs that are “dirty, dangerous and difficult”: Dupper, id at 220. This is especially true in respect of irregular migrants, who most often fall into a pool of flexible labour outside most forms of social protection. See Towards a Fair Deal for Migrant Workers in the Global Economy (2004, International Labour Office) at 7Google Scholar.

7 See: <http://www.gov.za/sites/www.gov.za/files/StateofSAPopulationReport2000-1_0.pdf> (last accessed 8 June 2015).

8 Crush, J, Williams, V and Peberdy, SMigration in Southern Africa (2005, Global Commission on International Migration) at 15–16Google Scholar.

9 Dekker, AH “The social protection of non-citizen migrants in South Africa” (2010) 22 South African Mercantile Law Journal 388Google Scholar.

10 According to Strode, A, Grant, B and Bhamjee, S “Are there laws and policies protecting people infected and affected by HIV/AIDS in southern Africa? An update of a review of the extent to which countries within the South African Development Community have implemented the HIV/AIDS and Human Rights International Guidelines” (2010) 16/2Obiter 460 at 461Google Scholar, seven of the SADC countries have HIV/AIDS rates of 15% or more.

11 According to an official report by the government-sponsored Statistics South Africa, an unemployment rate of 24.3% was surveyed in South Africa during the fourth quarter of 2014. See Statistics South Africa “Quarterly labour force survey: Quarter 4, 2014”, available at: <www.statssa.gov.za/publications/P0211/P02114thQuarter2014.pdf> (last accessed 6 June 2015). The survey defined (at xxiv) the term “unemployed persons” to be those (aged 15–64 years) who: “(a) Were not employed in the reference week; and (b) Actively looked for work or tried to start a business in the four weeks preceding the survey interview; and (c) Were available for work, ie would have been able to start work or a business in the reference week, or (d) Had not actively looked for work in the past four weeks but had a job or business to start at a definite date in the future and were available.”

12 See the discussion below about the terms “social protection”, “social security” and “labour security”.

13 Fombad, CM “An overview of the constitutional framework of the right to social security with special reference to South Africa” (2013) 21/1African Journal of International and Comparative Law 1 at 12CrossRefGoogle Scholar.

14 Dekker, AH, van Rensburg, L Janse, Liffman, R, Thompson, M and van der Walt, A “Social security: A conceptual overview” (2000) Law, Democracy & Development 1 at 3Google Scholar; Dupper “Migrant workers”, above at note 5 at 224; Fombad, id at 2.

15 However, it has been argued that the term social security should be given a broader interpretation than limiting it to the traditional pillars mentioned above. Van Ginneken, W “Extending social security: Policies for developing countries” (2003) 142/3International Labour Review 277 at 279Google Scholar argues that “a broad perception of social security is required to respond to the realities faced by informal-economy workers”. A discussion of informal social security in the SADC region falls beyond the scope of this article.

16 The South African Department of Social Development uses the term “comprehensive social protection”. See the Department of Social Development “Strategic Plan 2009–12”, available at: <http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=74&Itemid=3> (last accessed 5 June 2015). This concept includes social assistance, social insurance, social services and development initiatives which promote labour security. Dekker, AH “Where have all the young men gone? The impact of HIV/AIDS on informal social security systems and care for the elderly” (2004) 19/1SA Public LawGoogle Scholar 152 at 158 mentions: “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”.

17 Asian Development Bank “Social protection”, available at: <http://www.adb.org/de/node/152502> (last accessed 8 June 2015). See also Mpedi, LG and Govindjee, A “Social protection for workers posted to and from South Africa: A critical assessment” (2009) 30/3Obiter 774 at 775Google Scholar, who favour the use of the term “social protection” rather than the more limited concept of “social security”.

18 “Report of the director-general: Decent work” (1999, 87th session of the International Labour Conference) at 3. Van Staden, M “Towards a South African understanding of social justice: The International Labour Organization perspective” (2012) 1 TSAR 91 at 104Google Scholar argues that South Africa should apply the norms established by the ILO to develop the concept of “social justice” in South Africa.

19 World Commission on the Social Dimension of Globalization “A fair globalization: Creating opportunities for all” (2004, ILO).

20 ILO and World Health Organization “The social protection floor” (a joint crisis initiative by the UN Chief Executives Board for Co-ordination on the Social Protection Floor) (2009, ILO/World Health Organization).

21 Nyenti, M and Mpedi, LG “Impact of SADC protection instruments on the setting up of minimum social protection floor in southern African countries” (2012) 15/1Potchefstroom Electronic Law Journal 244 at 247CrossRefGoogle Scholar.

22 Ibid.

23 There are also conventions which seek equal treatment between nationals and non-nationals and others that promote the protection of acquired social security rights when workers transfer their work from one country to another. See, for example: the Equality of Treatment (Accident Compensation) Convention No 25 of 1925; the Equality of Treatment (Social Security) Convention No 118 of 1962; and the Maintenance of Social Security Rights Convention No 157 of 1982.

24 Apart from this, the ILO has adopted numerous conventions that provide for social security and labour protection in general that also indirectly relate to migrants. The ILO has identified eight conventions as being the fundamental conventions of the ILO: the Freedom of Association and the Right to Organise Convention No 87 of 1948; the Right to Organise and Collective Bargaining Convention No 90 of 1949; the Forced Labour Convention No 29 of 1930; the Abolition of Forced Labour Convention No 105 of 1957; the Minimum Age Convention No 138 of 1973; the Worst Forms of Child Labour Convention No 184 of 1999; the Equal Remuneration Convention No 100 of 1951; and the Discrimination (Employment and Occupation) Convention No 100 of 1951. See Van Niekerk, A, Christianson, MA, McGregor, M, Smit, N and van Eck, SLaw@work (2012, LexisNexis) at 22Google Scholar.

25 The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, above at note 3.

26 Dupper “Migrant workers”, above at note 5 at 219. He also points out: “At the First Session of the International Labour Conference in 1919, a recommendation [the Reciprocity of Treatment Recommendation, 1919 (No 2)] was adopted which already reflected the two main aims of the ILO in this area, namely equality of treatment between nationals and migrant workers, and coordination of migration policies between States.”

27 The ILO Constitution is available at: <http://www.ilo.org/public/english/bureau/leg/download/constitution.pdf> (last accessed 20 December 2012).

28 Emphasis added.

29 “Portability” refers to a migrant worker's right to maintain social security benefits which were gained in the country where they were employed and to transfer them to their country of origin after their return: Dupper “Migrant workers” above at note 5 at 219.

30 “Reciprocity”, in the context of migration, would mean that both the country of employment and the migrant's country of origin would have to be signatories to a convention before social security rights can be transferred: id at 231, note 80. As pointed out by Dupper, it is significant to note that the principle of non-reciprocity is enshrined in both of the ILO conventions dealing with migration. This entails that the migrant's social security rights should be respected by the country of employment irrespective of whether the country of origin has ratified the convention.

31 For example, the Southern Africa Trust “Crossing the threshold of regionalism” (2008) Policy Brief 10 makes reference to Morocco as an example of a country that has concluded bilateral agreements with a number of European countries to ensure the transfer of pension and health benefits. The effect of these agreements has been that the return rate to Europe of Moroccan migrant workers who retained their social insurance benefits has increased by 50%.

32 Sivakumaran, S “The rights of migrant workers one year on: Transformation or consolidation?” (2004) 36 Georgetown Journal of International Law 113 at 120Google Scholar; Dupper “Migrant workers”, above at note 5 at 220.

33 Böhning, R “The ILO and the new UN convention on migrant workers: The past and the future” (1991) 25/4International Migration Review 698 at 700CrossRefGoogle Scholar.

34 Dupper, O “Migrant workers and the right to social security: An international perspective” in Becker, U and Olivier, MP (eds) Access to Social Security for Non-Citizens and Informal Sector Workers: An International, South African and German Perspective (2008, Sun Press) 13 at 35–36Google Scholar confirms that 20 ratifications were needed for the convention to come into force.

35 Taran “Human rights of migrants”, above at note 5 at 18; Dekker “The social protection”, above at note 9 at 392 points out that there is a “fear that irregular migration may increase” if human rights protection is extended to irregular migrants.

36 Böhning “The ILO and the new UN convention”, above at note 33 at 740. The text of the convention is available at: <http://www.ohchr.org/Documents/Publications/FactSheet24rev.1en.pdf> (last accessed 7 May 2015).

37 International Convention on Migrant Workers, art 7.

38 Emphasis added.

39 Emphasis added.

40 Dupper “Migrant workers”, above at note 5 at 392 mentions that state parties “can adopt provisions that would, for example, differentiate between regular and irregular migrants, thereby negating the protection that this article is meant to confer on all migrants, irrespective of their status”.

41 Ibid.

42 International Convention on Migrant Workers, art 25.1.

43 Id, art 25.2.

44 Id, art 25.3.

45 Dupper “Migrant workers”, above at note 5 at 234. Dupper does, however, point out that there is uncertainty pertaining to the definition of “emergency care”.

46 AU res on the establishment of a strategic framework for a policy of migration in Africa, paras 4–5: CM/Dec 34 (LXXIV) 2001.

47 AU “African common position on migration and development” (AU Executive Council, 9th ordinary session, Banjul, 25–29 June 2006): doc EX.CL/277 (IX) (2006b).

48 Id, para 7.1.

49 Olivier, MP “Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements within a multilateral framework (part II)” (2012) 2/2SADC Law Journal 129 at 138Google Scholar.

50 Ibid.

51 On 14 August 2001, heads of state and government signed an agreement amending the SADC Treaty.

52 See note 24 above.

53 Nyenti and Mpedi “Impact of SADC protection instruments”, above at note 21 at 252.

54 SADC Charter, art 4.

55 Id, art 6.

56 Id, art 7.

57 Id, art 8.

58 Id, art 8.

59 The SADC Social Security Code, signed on 1 January 2008, refers to the position of migrant workers in particular.

60 Id, art 17(1).

61 Id, art 17(2)(a) and (b).

62 Id, art 17(2).

63 Id, art 17(2)(c) and (d).

64 Id, art 17(3).

65 Available at: <http://www.sadc.int/files/7413/5292/8365/Protocol_on_Health1999.pdf> (last accessed 7 May 2015).

66 Nyenti and Mpedi “Impact of SADC protection instruments”, above at note 21 at 256–57.

67 Available at: <http://www.unisa.ac.za/contents/faculties/law/docs/facilitation_of_movement_of_persons_sadc_1996.pdf> (last accessed 8 June 2015).

68 Mpedi and Smit Access to Social Services, above at note 4 at 41.

69 SADC Protocol on the Facilitation of Movement of Persons, arts 13–14.

70 Fombad “An overview of the constitutional framework”, above at note 13 at 1.

71 Ibid.

72 Id at 12.

73 See the discussion that follows below.

74 Fombad “An overview of the constitutional framework”, above at note 13 at 12–16, mentions that this is especially the case in, among other countries, Lesotho, Nigeria, Sierra Leone and Tanzania.

75 Olivier “Enhancing access”, above at note 1 at 123, mentions that “subject to some exceptions, it appears that most of the migration from SADC is actually to other SADC countries. Thus intra-SADC movement is the prevailing characteristic of migration from SADC countries.”

76 Olivier, MP and Mpedi, LG “Co-ordination and integration of social security in the SADC region: Developing the social dimension of economic co-operation and integration” (2004) 28/3Journal for Juridical Science 10 at 15CrossRefGoogle Scholar.

77 National Planning Commission “Diagnostic report” (2011) at 9, based on (2010) 26 Development Indicators 2010 at 3, as referred to by Sinclair, J “Poverty: Giving meaning to the right to social assistance” 23/2Stellenbosch Law Review 191 at 213–15 and 217–19Google Scholar.

78 Statistics South Africa “Quarterly labour force survey: Quarter 3 (2011)” at vi.

79 Fombad “An overview of the constitutional framework”, above at note 13 at 13.

80 Ntseane, D and Solo, K “Social protection in SADC: Developing an integrated and inclusive framework – the case of Botswana” in Olivier, MP and Kalula, ER (eds) Social Protection in SADC: Developing an Integrated and Inclusive Framework (2004, Friedrich Ebert Stiftung) 89 at 92Google Scholar; the authors mention that “Botswana has not ratified any international social security conventions nor are there at present any plans to do so.”

81 D Ntseane and K Kholisani “Access to social services for non-citizens, and the portability of social benefits within the Southern African Development Community (SADC): Botswana country report” (2007, report to the World Bank) at 7. Other services referred to in the report are the school-based food programme, World War II veteran's allowance, labour based relief programme, programme for remote area dwellers, education, and health care provision.

82 Ntseane and Solo “Social protection in SADC”, above at note 80 at 89; at 92 the authors mentions that “most social security programs in Botswana are offered as a matter of social policy only. There is no right to social security and social assistance.”

83 Ntseane and Kholisani “Access to social services for non-citizens”, above at note 81 at 8–9.

84 Id at 11, the authors state: “Like the destitute allowance, the scheme is accessible to citizens only. In an effort to check citizenship, social workers who conduct assessment demand that beneficiaries produce the death certificates of their parents or their national registration card.”

85 Id at 13, the authors mention: “Identification to confirm eligibility is through the National Registration Card and therefore the scheme is very exclusive.”

86 Id at 21.

87 Ibid.

88 Ntseane and Solo “Social protection in SADC”, above at note 80 at 94.

89 Employment Act, 1982, sec 1.

90 Mpedi and Smit Access to Social Services, above at note 4 at 27.

91 Constitution of the Republic of South Africa, 1996 (the 1996 Constitution).

92 Udombanat, NJ “Social rights are human rights: Actualizing the rights to work and social security in Africa” (2006) 39 Cornell International Law Journal 181 at 187Google Scholar; JC Mubangizi “Prospects and challenges in the protection and enforcement of socio-economic rights: Lessons from the southern African experience” (paper delivered at the seventh world congress of the International Association of Constitutional Law, Athens, 11 June 2007) at 2.

93 Olivier and Mpedi “Co-ordination and integration”, above at note 76 at 25. The 1996 Constitution makes no direct reference to the traditional division between first, second and third generation human rights.

94 In Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC), the respondents were rendered homeless as a result of their eviction from their informal homes situated on private land. They applied to the court for an order requiring the government to provide them with adequate basic shelter until they obtained permanent accommodation. They were granted certain relief. The court held that human rights are inter-related and are all equally important. This has significant practical importance in a society founded on these values. At para 1 the court stated: “The people of South Africa are committed to the attainment of social justice and the quality of life for everyone. The Preamble of the Constitution records this commitment.”

95 1996 Constitution, sec 39(1)(b). Sec 233 adds that, when legislation is being interpreted, the courts must prefer any reasonable interpretation that is consistent with international law over alternative interpretations.

96 Id, sec 27(1)(a)–(c). Also closely related to the notions of social security and social protection, the 1996 Constitution further protects everyone's right to human dignity (sec 10), equality (sec 9), housing (sec 26) and education (sec 29).

97 Id, sec 27(2). In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC), free medical treatment was denied to the applicant in an instance where a hospital could, due to financial constraints, only provide dialysis treatment to a limited number of patients. At para 11, the Constitutional Court held that the obligations imposed on the state “in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes … Given this lack of resources …, an unqualified obligation to meet these needs would not presently be capable of being fulfilled.” See also Mazibuko v City of Johannesburg 2010 (3) BCLR 239 (CC), where a project introduced by the City of Johannesburg to address the problem of non-payment for water services was subjected to constitutional scrutiny. The project involved the installation of pre-paid meters to charge consumers for using in excess of six kilolitres of water per household monthly. The court declined to interfere with the project, based on the argument that it was not appropriate for the court to quantify the content of what constituted “sufficient” water. This was a matter for the legislature and government to determine.

98 Brand, D “Judicial deference and democracy in socio-economic rights cases in South Africa” (2011) 22/4Stellenbosch Law Review 614 at 614–15Google Scholar; Liebenberg, SSocio-Economic Rights: Adjudication Under a Transformative Constitution (2010, Juta & Co) at 195Google Scholar; Sinclair “Poverty”, above at note 77 at 217–19.

99 1996 Constitution, sec 23(1).

100 Mpedi and Govindjee “Social protection for workers”, above at note 17 at 775. Olivier “Enhancing access”, above at note 1 at 130 mentions: “However, the system is category-based and means-tested, as benefits are provided only to certain defined categories of persons who are deemed to be in need.”

101 Act 85 of 1993. The act provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases.

102 Act 76 of 1973. This act covers occupational lung diseases.

103 Act 63 of 2001. Sec 2 establishes “an unemployment insurance fund to which employers and employees contribute and from which employees who become unemployed or their beneficiaries, as the case may be, are entitled to benefits and in so doing to alleviate the harmful economic and social effects of unemployment”.

104 Act 131 of 1998. Private health care is generally arranged privately through occupation-based medical insurance. Public health care is available to the general public, but is under-funded and inadequate. South Africa is in the process of implementing a National Health Insurance scheme. The government published a discussion document entitled “Policy on national health insurance” in August 2011. See A Van den Heever “Evaluation of the green paper on national health insurance” (20 December 2011), available at: <http://hsf.org.za/siteworkspace/gp-review-alexvdh-dec2011-vf-1.pdf> (last accessed 7 May 2015).

105 Act 24 of 1956. There is no national retirement scheme in South Africa. It is believed that 75% of workers in formal employment are members of private retirement schemes. See Olivier “Enhancing access”, above at note 1 at 133.

106 Established under the Road Accident Fund Act 56 of 1996.

107 Van Niekerk et al Law@work, above at note 24 at 459.

108 Olivier “Enhancing access”, above at note 1 at 131, mentions that “migrant workers do not qualify for unemployment insurance benefits: they are excluded from coverage, since they have to return to their home country, when their contract of service … in South Africa ends”.

109 Act 13 of 2004.

110 Id, sec 1.

111 Id, secs 1 and 4 make provision for the following narrow and specific categories of social grants: child support (for disadvantaged children); care dependency (for severely disadvantaged children); foster child care; disability; old age; war veterans; and social relief for distress as a temporary measure. Olivier has severely criticized the limited nature of these grants: Olivier “Enhancing access”, above at note 1 at 130. Sinclair “Poverty”, above at note 77 at 201, argues that this narrow formulation is unconstitutional.

112 See Khosa v Minister of Social Development; Mahlaule v The Minister of Social Development 2004 (6) BCLR 569 (CC). At para 40 of the decision, the court held that “the socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom”. Further, at para 82, the court held that “the importance of providing access to social assistance to all who live permanently in South Africa and the impact upon life and dignity that a denial of such access has, far outweighs the financial and immigration consideration on which the state relies”. In Larbi-Odam and Others v MEC for Education 1998 (1) SA 745 (CC) the Constitutional Court struck down regulations that limited state school teacher appointments to citizens only. The court held that these limitations discriminated against migrants with permanent residency. However, the court did not extend this principle to irregular migrants.

113 The authors acknowledge reliance on Liebenberg Socio-Economic Rights, above at note 98 at 195–97, and Sinclair “Poverty”, above at note 77 at 218, in formulating this argument.

114 In Discovery Health Ltd v CCMA (2008) ILJ 1480 (LC) the Labour Court concluded that, even though a contravention of the Immigration Act 13 of 2002 is deemed a criminal offence, it does not invalidate the underlying contract of employment. Sec 23 of the 1996 Constitution provides that “everyone has the right to fair labour practices” and the irregular migrant worker remains an “employee” in terms of labour legislation.

115 In “Kylie” v CCMA (2010) BLLR 705 (LAC) the Labour Appeal Court held that the definition of “employee” contained in labour legislation was wide enough to include a sex worker whose contract of employment was unenforceable under common law.

116 According to the official UN treaty collection web page, there are only 38 signatories to the convention. See: <https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-13&chapter=4&lang=en> (last accessed 7 June 2015).

117 South Africa has responded to poverty alleviation with a number of policies over the past two decades. First it was the Reconstruction and Development Plan, then the Growth, Employment and Distribution Plan followed by the Accelerated and Shared Growth initiative for South Africa. These strategies, together with the Millennium Development Goal, aimed to halve unemployment by 2014. The now new National Development Plan aims to eradicate poverty by creating 11 million new jobs by 2030. These goals seem idealistic and extremely difficult to attain.

118 Sinclair “Poverty”, above at note 77 at 196–99.

119 Fenwick, C and Kalula, E “Law and labour market regulation in east Asia and southern Africa” (2005) 21 International Journal of Comparative Labour Law and Industrial Relations 193 at 194Google Scholar.

120 Crush et al Migration in Southern Africa, above at note 8 at 3–5.

121 Ibid.

122 The 2007 World Bank country report on Botswana confirms that it was realised in Botswana that neighbouring governments should provide for their own citizens and that irregular migrants who apply for social security grants would only be assisted on a temporary basis, before being reported to the Botswana Department of Immigration and being repatriated to their country of origin. See Ntseane and Kholisani “Access to social services”, above at note 81 at 8–9 and 21.

123 Olivier “Enhancing access”, above at note 1 at 127.

124 Olivier “Enhancing access (part II)”, above at note 49 at 161, sets out extensive research in this regard and makes useful suggestions about how this can be realized.

125 Mpedi and Govindjee “Social protection for workers”, above at note 17 at 781; Olivier, id at 162. Millard, D “Migration and the portability of social security benefits: The position of non-citizens in the Southern African Development Community” (2008) 8 African Human Rights Law Journal 37 at 55–56Google Scholar suggests that policies should also be developed in the SADC region to allow for the portability of pension fund and other social insurance contributions and benefits.

126 Nyenti and Mpedi “Impact of SADC protection instruments”, above at note 21 at 273.