Celebrating Worker’s Day in South Africa on 1 May 2023 has a hollow ring to it. Commemorating the achievements of the labour movement, including many important improvements to working conditions, and celebrating the crucial role of the working class in our country’s past and present, are overshadowed by the alarmingly high unemployment rate among South Africans.  The precarious position of domestic workers demands more visibility about their rights and greater accountability for those who violate their rights. Acknowledging South Africa’s membership of the global community, and conscious of the undercurrent of xenophobia, consideration should be given to placing the rights of migrant workers on a firmer footing by ratifying the United Nations treaty on this theme.

Government should take concerted and deliberate action to address alarming unemployment rate

A close analysis of the available statistics gives cause for alarm – and underlines the need for action. According to the South African Quarterly Labour Force Survey (QLFS), the unemployment rate for the fourth quarter of was 32,7%. This means that just about a third of the population between 15 and 64, who were eligible for work, were not employed in the particular week during which the survey was undertaken, and actively looked for work or tried to start a business in the four weeks preceding the survey interview.

The official governmental message has been that, on a year-to-year comparison, there has been a reduction in unemployment. In other words, we were assured that the statistics represent ‘good news’.

While there has been a slight reduction in the ‘official unemployment’ figures, these statistics are not ‘good news’. Comparing current unemployment statistics to data under COVID-19 is deceptive. But more than that: Foregrounding the ‘official unemployment rate’, as states routinely do, is deceptive. Taking the reality of people’s lives as reference point, the expanded definition of unemployment is much more instructive. The expanded definition refers not only to everyone between 15 and 64 eligible for work who during the interview week was not employed, but also to everyone who was available to work but did not look for work either because they were discouraged from looking for work or did not look for work for other reasons.

According to this definition, which much more accurately captures the actual number of people not working, the unemployment rate for the fourth quarter of 2022 was
42,6% — ten percent higher than the ‘official employment rate’. This rate obviously varies by province. Using the realistic measure of the expanded definition, just about half of the relevant population cohort in Limpopo Province are unemployed.

The legacy of race-based job reservation and inequalities in education and many other sectors casts its shadow over the present. Unemployment patterns are still racialised, with the expanded unemployment rate among Black South Africans (43.7%) exceeding the national average (42,6%). The corresponding rates among  White South Africans is 10%, among Indian/Asians 20%, and among ‘Coloured’ South Africans 31,8%. Black African women continue to be the most vulnerable to unemployment.

With expanded unemployment rates of 71% among 15-24-year-old youth, and 49,5% among those 25-34 years old, statistics give stark supported to the commonly expressed wisdom that unemployment among our youth is a ‘ticking time bomb’.

Unemployment is a complex and seemingly intractable problem. Its solution lies in economic growth, which depends in no small measure on an unequivocally expressed and actually realised commitment to eradicate corruption, restore the electricity supply, ensure clean and transparent governance and effectively guarantee continuous respect for human rights.  As it has done with the ‘electricity crisis’, the government should look these statistics – and the reality it represents – squarely in the eye, and take concrete, deliberate and ongoing action that shows its appreciation of how dire the situation is.

Domestic workers’ rights should be prioritised

Of those persons in employment, domestic workers are part of a category of ‘employees’ at particular risk of rights violations and abuse. The overwhelming majority of domestic workers are Black women. It was only in 2020 that the Constitutional Court ruling in Sylvia Bongi Mahlangu and Others v Minister of Labour and Others confirmed that domestic workers are in fact ‘employees’ for the purpose of being compensated under the Occupational Injuries and Diseases Act 130 of 1993. In that case, the Court noted that domestic workers are ‘undervalued and unrecognised; even though they play a central role in our society’.

Even if their rights have been vindicated, and extensive legal protection is in place, domestic workers often are not benefiting from this protection. Especially live-in domestic workers may be vulnerable to abuse and exploitation. To understand the legal position of domestic workers, one can not only refer to the Basic Conditions of Employment Act, but one must also look closely at the regulation of the sector through ‘Sectoral Determination 7: Domestic Worker Sector’. It sets out that no more than 10% of the wage of a live-in domestic worker can be deducted for a room or other accommodation supplied by the employer, and stipulates the minimum standards for this accommodation. It also stipulates that live-in domestic workers are entitled to at least one month’s notice to vacate any premises.

The problem is that these provisions are not well known, and not consistently applied. One reason is the low level of knowledge about Sectoral Determination 7 and infrequent and irregular inspection to ensure compliance.

The Centre for Human Rights calls on the Department of Labour to prioritise a wide-reaching information campaign and the effective enforcement of Sectoral Determination 7. This call is in line with International Labour Organisation Convention189, to which South Africa is a party, which requires states to  ‘develop and implement measures for labour inspection, enforcement, and penalties, with due regard for the special characteristics of domestic work’.

Government should secure migrant workers’ rights by ratifying UN treaty

In a globalised world, people move across borders to work in other countries. South Africa’s history is intertwined with migrant work. Mining capitalism and the apartheid economy have benefited greatly from cheap migrant labour from neighbouring African countries.

The UN in 1990 adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW). It entered into force in 2003. Under this treaty, a ‘migrant worker’ refers to 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.

The CMW provides basic protection to migrant workers, such as the right to express their opinion, practice their religion and not to be held in slavery or servitude. It also requires states to guarantee that migrant workers and members of their families are not subject to collective expulsion and violence. Under the treaty, migrant workers enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration, conditions of work, and other terms of employment, such as minimum age of employment.

Almost half of the 58 UN member states that have accepted the CMW as binding are African states. No European Union member state has thus far ratified the treaty. South Africa has neither signed nor ratified the CMW.

Celebrating Worker’s Day should inspire the South African government to reflect on ways to underline its commitment to treat non-nationals of South Africa who are performing work in the country fairly and with dignity. One way of doing so is to show solidarity with the majority of African countries, and to accede to the CMW.

The importance of securing the rights of migrant workers has recently been brought to the attention of the Centre for Human Rights, when two South African migrant workers who are unable to leave the United Arab Emirates (UAE), approached us. They allege that they are de facto held hostage due to their inability to pay huge debts based on fraudulent acknowledgements of debt they have been misled into agreeing to. Abu Dhabi and Dubai maintain a system that impose travel bans related to unsettled debts or pending legal action. Some 85% of the population of the UAE  are migrants from Asia, the Arab peninsula and Africa. If South Africa and the UAE were both parties to the CMW, South Africa could have submitted an inter-state complaint to the CMW Committee.

The Centre for Human Rights, therefore, urges South Africa to become a state party to the CMEW by acceding to it.

For more Information, please contact:

Prof Frans Viljoen
Member, Advisory Committee, UN Human Rights Council

Professor of International Human Rights Law

Tel: +27 (0) 12 420 3228


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