Of particular concern is the proposed Ministerial Quota System through which the Minister may prescribe a maximum quota for the employment of foreign nationals by employers in any sector. Enforcement of such quotas, translating into general prohibitions of employment without regard for individual circumstances, would likely fall foul of our Constitution.
The SCA has held of asylum applicants that:
[A] general prohibition [of employment]will inevitably include amongst those that it affects applicants for asylum who have no reasonable means of support other than through employment. A prohibition against employment in those circumstances is a material invasion of human dignity that is not justifiable in terms of s 36.
The foreign nationals to whom the ministerial quotas would apply, no less than asylum applicants, are lawfully resident in South Africa and hold permits authorising them to work. Many of the foreign nationals, if not the vast majority, will also have no reasonable means of support other than employment.
Moreover the Draft National Labour Migration Policy expressly acknowledges that the proposal of a Ministerial Quota System is unsupported by any real data about the effect of foreign nationals on the labour market, thereby inviting judicial review of the proposed quota system for being an irrational exercise of power.
That is all the more so, given that the Bill also includes other, less drastic measures by which to regulate the lawful employment of foreign nationals. HSF submits that the Bill should instead rely on a properly enforced penalty system for contraventions of the Bill’s proposed section 12A, entitled “Employment of Foreign Nationals”, subject to the changes to that section that are proposed in the HSF submission.
The invasive, potentially excessive and unduly onerous effect of the powers granted the Minister in terms of the Bill give rise to a more general concern on the part of the HSF: that the Bill is primarily intended to signal government’s support for rising xenophobic sentiment in South Africa.
It is not the HSF’s submission that migrants of all kinds have an unlimited right to work in South Africa. We recognise that it is legitimate for government to ensure that workers have the requisite lawful status in terms of our immigration legislation, but this the Bill and Act would do without the imposition of a quota system.
The HSF’s full submission is available here.
