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Submission on the Social Justice Implications of Draft National Labour Migration Policy and Employment Services Amendment Bill 28 May 2022

Purpose

The purpose of this submission is to provide commentary on the Draft National Labour Migration Policy (Draft Policy) and the Employment Services Amendment Bill (Draft Policy and Bill). The commentary is in response to the invitation by the Minister of Employment and Labour, Hon Thembelani Wáltermade Nxesi, for public comments on proposed Amendments to the Employment Services Act 4 of 2014, Sections 8 and 9 to introduce new provisions on National Labour Migration and related matters published on 28 February 2022. The submission has been prepared by the Law Trust Chair in Social Justice at Stellenbosch University (CSJ), with input from experts and stakeholders from an Expert Roundtable and a Social Justice Café on social justice and immigration regulation.

General observations

The government deserves to be applauded for the 90 days it allocated for public comment. This is a reasonable amount of time given to the public to engage with these proposed regulatory changes. Also worth applauding is the fact that the relevant government departments and agencies sent representatives to the Expert Roundtable who outlined the context that has necessitated the law and policy reform, the vision behind the proposed changes, and the factors considered in grounding the proposed changes. They also engaged meaningfully with the experts and the stakeholders, which augurs well for the democratic governance goal in the Constitution of the Republic of South Africa, 1996 (Constitution).

The consensus at the Expert Roundtable and Social Justice Café was that law and policy reform was necessary interventions to promote just, equitable and fair participation in employment and informal sector opportunities, while still upholding and advancing relevant human rights. It was agreed that the status quo was neither good for social cohesion nor in sync with constitutional and international human rights obligations, particularly regarding social justice in employment and economic inclusion. However, some of the participants expressed concerns about the risk of the proposed changes and whether they would exacerbate the hardships that refugees, asylum seekers and other foreign nationals are already unfairly experiencing. The concerns included allegations that some of the regulatory standards fell below South Africa’s international obligations, under the United Nations (UN) and the International Labour Organisation (ILO) on the protection of

refugees and workers of foreign origins. The participants of the roundtable expressed concern that the incidences of xenophobia in South Africa are skewed towards Africans. Some expressed the opposite view that the proposed changes did not go far enough to address the unfair employment practices experienced by citizens due to unethical business practices that undercut their decent work demands by drawing their workforce from foreign nationals, particularly undocumented immigrants. Concern was also raised about the unsustainability of allowing the free flow of migrants to start and operate businesses in the informal sector given the existing social justice challenges in the country. Some of these challenges include the highest Gini coefficient in the world at almost 70% with poverty at 64.2% among those classified by law as Africans and at 1% among those classified as white as well as high levels of unemployment, incorporating youth unemployment that Statistics South Africa estimates to be at about 70%.

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By Chair in Social Justice team
Published 10 June 2022


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About the Chair:

Professor Thulisile “Thuli” Madonsela, an advocate of the High Court of South Africa, is the law trust chair in social justice and a law professor at the University of Stellenbosch, where she conducts and coordinates social justice research and teaches constitutional and administrative law.

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