FEBURARY 11 2017 – SA Minister of Home Affairs Malusi Gigaba”s pronouncements recently calling for a crackdown on business and fining those whose staff do not hire at least make 60% South African citizens is discriminatory under the SA constitution.
Gigaba’s remarks legally are discriminatory towards the migrant populace as the Constitution of South Africa is against all forms of discrimination.
Discrimination based on nationality is still discrimination and takes away the employer’s independence in choosing their staff.
Such discrimination goes on to cement the stereotypical fact that migrants are taking to locals’ jobs. Instead of quelling violence and hatred against the migrant community, it actually adds to the belief that migrants are the sole cause of SA’s current political and social problems.
The legal conundrum that the minister could face is class action against the 60% local content by the migrant community. Whether or not it is justified discrimination will be decided upon by a court of law, but for now, the fact remains that the utterances are discriminatory to a greater extent and they cement the limited analogy that migrants are taking locals’ jobs.
Gigaba goes on to add that “offending” businesses would be heavily fined and have their licences reviewed, while managers and owners could be jailed for up to two years if legal action was taken by the department, adding that widespread non compliance is prevalent in the hospitality, construction, agriculture and mining sectors.
The minister recently met players in the hospitality industry, including hotel and restaurant owners and managers, to address the high rates of immigrant employment in the country.
Among other things, they agreed to raise awareness on the dangers and consequences of employing undocumented people, including the risk on their part of jeopardising their licences.
By consensus there was a requirement to employ 60% citizens and an acknowledgement of its importance. There was consensus on dire consequences of failure to respond and the impact on communities, as well as on balancing international migration with security needs of the state.
What is interesting to note is that most of these ministers in government have got migrant labourers in their houses or private companies that they overwork and underpay. They do not walk the talk. They do small talk to please the voters. The majority of migrants are self employed and they have small businesses in areas that the local citizens have no skills in. The fixing of cell-phones, selling second hand clothes, selling brooms and feather dusters is what a significant number of migrants are doing.
It is common cause that many businesses do not hire South African workers, as they prefer migrants for reasons known to all. Such employment practices have been blamed for some of the incidents of attacks on non citizens and are no different from from what the Mayor of Johannesburg, Herman Mashaba is currently doing.
In addition such initiatives are the Minister of Labour’s and one with more authority to speak in terms of percentages and the compliance issues thus far.
Gigaba has then violated the doctrine of separation of powers, as he should stick to documentation, and if need be the minister of labour would then have to enforce the 60% compliance aspect.
The volatile cat and mouse relationship between South African citizens and the precarious and vulnerable African and black migrants has been the major cause of xenophobia attacks. This move by the department to intervene comes from the alleged serious concerns from citizens, communities and government departments.
Recklessly put, employers are happy to employ a vulnerable person so that they will manipulate and abuse the rights of the employee. Such people include undocumented and desperate migrants who would ordinarily feel the law doesn’t protect them. .
The reasons why the hospitality and construction sectors have employed more migrants than locals was through selection by natural causes. Migrants are generally hard workers who are willing to have the work done.
The migrant community also provides a reserve pool of valuable skills like carpentry, plumbing, building and so forth. Such skills if harnessed properly will go a long way in protecting the rights of the employee.
So while Mashaba is busy harassing poor migrants, Gigaba is busy raiding companies for labour and immigration enforcement.
For more information about MIWUSA and your rights as a migrant worker, Contact: Advocate Chadya Tapiwa Diamond a Miwusa legal specialist, former student leader, who read law the University of Kwa-Zulu Natal, on 27 (0)84 566 2756 or 27 (0)81 518 5880, Whatsapp or Email him at diamondtapiwa@gmail.com,or twitter @mantronieqscie or like Tapiwa Diamond Chadya on facebook. He writes in his personal capacity.
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