ARTICLES

Migration and the portability of social security benefits: The position of non-citizens in the Southern African Development Community

Daleen Millard

Associate Professor in Private Law, University of Johannesburg, South Africa

SUMMARY

The Southern African Development Community (SADC) region currently experiences spontaneous migration of citizens across borders in search of job opportunities and a better standard of living. Generally, freedom of movement across borders which manifests in migration, is a distinguishing feature of globalisation and should be respected as a basic human right. However, what is of growing concern in SADC is the portability of migrants' social security benefits. Do the current SADC structures allow migrants to preserve, maintain and transfer social security benefits such as pension benefits independent of their nationality or country of origin? This article explores the social security measures in individual SADC member states and the extent to which these national measures provide protection for migrants in SADC. Comparing the situation within SADC to that in the European Union, the article concludes that, although there is no simple solution to the problem, it is imperative that SADC member states recognise international standards pertaining to migrants and, more importantly, standards pertaining to the portability of benefits. Ideally, SADC member countries should gradually extend social protection to non-citizens who contribute to their economies through their labour and thereby enhance the right to freedom of movement.

“Full text available only in PDF format”

* Blur LLB LLM (Pretoria), LLD (Johannesburg); daleenmillard@gmail.com. This article is based on a paper presented at an international workshop held on 18 and 19 January 2006 in Johannesburg, as a joint project by the Max Planck Institute for Foreign and Comparative Social Law, Münich, Germany, and the Centre for lnternational and Comparative Labour and Social Security Law at the University of Johannesburg. I am greatly indebted to my colleague, Marius Olivier, for the opportunity to have participated in the workshop.
1 The Southern African Development Community was formed in 1980 as a loose alliance of nine majority-ruled states in Southern Africa known as the Southern African Development Co-ordination Conference (SADCC). Their main aim was to co-ordinate development projects in order to lessen economic dependence on the then apartheid South Africa. The member states are Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. For more information on the activities of SADC, see in general http://www.tralac.org/scripts/content.php?id=3032 (accessed 17 March 2008).
2 MP Olivier et al 'Equitable trade and the social dimension in SADC: Recent experiences and proposals for enhanced protection' paper presented at IIRA/CIRA: 4th Regional Congress of the Americas and 39th Canadian Industrial relations Association Annual Meeting, Toronto, 25-29 June 2002.         [ Links ]
3 R Holzman et al 'Portability regimes of pension and health care benefits for international migrants: An analysis of issues and good practices' 2005 Social Protection Discussion Series 4.         [ Links ]
4 Holzman et al (n 3 above) 5.
5 O Dupper 'Migrant workers and the right to social security: An international perspective' (2007) 18 Stellenbosch Law Review 217.         [ Links ]
6 Dupper (n 5 above) 220.
7 As above.
8 B Schulte 'Institutional framework, legal instruments and legal techniques relating to the promotion of access to social security to non-citizens - A German perspective' unpublished paper read at a joint international workshop by the Max Planck Institute for Foreign and Comparative Social Law, Münich, Germany, and the Centre for International and Comparative Labour and Social Security Law at the University of Johannesburg held on 18 and 19 January 2006 in Johannesburg.         [ Links ]
9 Schulte (n 8 above) 10.
10 Geneva Convention; see Schulte (n 8 above) 10.
11 As above.
12 V Taylor 'Social protection challenges in Southern Africa' (2001) 2 Co-operation South Journal 49.         [ Links ]
13 Constitution of the Republic of South Africa 1996.         [ Links ]
14 MP Olivier et al (eds) Social security: A legal analysis (2003) 23.         [ Links ]
15 MP Olivier & ER Kalula 'Scope of coverage' in Olivier et al (n 14 above) 144.
16 Social assistance is payable in accordance with the Social Assistance Act 13 of 2004.
17 Act 24 of 1956.
18 Sec 14(1) reads: 'No transaction involving the amalgamation of any business carried on by a registered fund with any business carried on by any other person (irrespective of whether that other person is or is not a registered fund), or the transfer of any business from a registered fund to any other person, or the transfer of any business from any other person to a registered fund shall be of any force or effect unless (a) the scheme for the proposed transaction, including a copy of every actuarial or other statement taken into account for the purposes of the scheme, has been submitted to the registrar; (b) the registrar has been furnished with such additional particulars or such a special report by a valuator, as he may deem necessary for the purposes of this subsection; (c) the registrar is satisfied that the scheme referred to in paragraph (a) is reasonable and equitable and accords full recognition (i) to the rights and reasonable benefit expectations of the members transferring in terms of the rules of a fund where such rights and reasonable benefit expectations relate to service prior to the date of transfer; (ii) to any additional benefits in respect of service prior to the date of transfer, the payment of which has become established practice; and (iii) to the payment of minimum benefits referred to in section 14A, and that the proposed transactions would not render any fund which is a party thereto and which will continue to exist if the proposed transaction is completed, unable to meet the requirements of this Act or to remain in a sound financial condition or, in the case of a fund which is not in a sound financial condition, to attain such a condition within a period of time deemed by the registrar to be satisfactory.'
19 Olivier & Kalula (n 15 above) 136.
20 Act 63 of 2001.
21 Act 130 of 1993.
22 Act 56 of 1996.
23 In order to succeed with a claim, the plaintiff needs to prove that the wrongdoer drove a motor vehicle negligently. See in general HB Klopper Law of third party compensation (2000) 2.         [ Links ] The writer indicates that the claimant needs to prove all the elements of a delict, namely, conduct, unlawfulness, fault, causation and damage.
24 On the requirements for liability, see D van der Nest 'Motor vehicle accidents' in Olivier et al (n 14 above) 501.
25 2004 6 BCLR 569 (CC).
26 Act 59 of 1992. This Act was replaced by the Social Assistance Act 13 of 2004 (see n 16 above).
27 In casu, the majority ruled that permanent residents are entitled to, inter alia, the old-age grant, the child support grant and the care dependency grant.
28 Act 130 of 1998.
29 n 13 above.
30 Taylor (n 12 above) 56.
31 As above.
32 MP Olivier & GCZ Mhone 'Social protection in SADC: Developing an integrated and inclusive framework - The case of South Africa' in MP Olivier & ER Kalula (eds) Social protection in SADC: Developing an integrated and inclusive framework (2004) 136.         [ Links ]
33 As above.
34 Taylor (n 12 above) 55.
35 As above.
36 D Ntseane & K Solo 'Social protection in SADC: Developing an integrated and inclusive framework - The case of Botswana' in Olivier & Kalula (n 32 above) 89.
37 Ntseane & Solo (n 36 above) 92.
38 See sec 2.1 above.
39 Taylor (n 12 above) 56.
40 Lesotho is an enclosed area that relies heavily upon South Africa for its economic well-being. Agreements are in place as a matter of necessity and not of policy, as many citizens of Lesotho move across the border into South Africa in order to work. The absence of agreements would have disastrous consequences for a small country like Lesotho. If workers who have spent a lifetime working in South Africa were denied a pension upon retirement, it would lead to disastrous consequences for those workers and everyone else who are reliant upon them.
41 NR Kanyongolo 'Social protection in SADC: Developing an integrated and inclusive framework - The case of Malawi' in Olivier & Kalula (n 32 above) 97.
42 Sec 30(1) Constitution of Malawi.
43 Sec 30(2) Constitution of Malawi.
44 Sec 5 Constitution of Malawi.
45 Kanyongolo (n 41 above) 109.
46 Taylor (n 12 above) 56.
47 As above.
48 Report of the Tanzanian Labour Law Reform Task Team (May 2005) 123. See also the discussion on the proposed Tanzanian legislation in sec 2.10 below.
49 Kanyongolo (n 41 above) 110.
50 Taylor (n 12 above) 57.
51 As above.
52 As above.
53 MP Olivier & E Kalula 'Regional social security' in Olivier et al (n 14 above) 666-667.
54 Taylor (n 12 above) 57.
55 As above.
56 As above.
57 Olivier & Kalula (n 53 above) 667.
58 Taylor (n 12 above) 57.
59 As above.
60 As above.
61 As above.
62 Taylor (n 12 above) 57.
63 As above.
64 As above.
65 As above.
66 Report of the Tanzanian Labour Law Reform Task Team (n 48 above) 10.
67 As above.
68 As above.
69 As above.
70 Report of the Tanzanian Labour Law Reform Task Team (n 48 above) 115. Eg, it was argued that the system needed a complete overall and that very little should remain of the existing social security system.
71 Report of the Tanzanian Labour Law Reform Task Team (n 48 above) 119.
72 As above.
73 As above.
74 As above.
75 Social Security Bill 2005. See cl 323.
76 Cl 324(2) Social Security Bill 2005.
77 Taylor (n 12 above) 59.
78 Constitution of Zambia, 1996.
79 N Chisupa 'Social protection in SADC: Developing an integrated and inclusive framework - The case of Zambia' in Olivier & Kalula (n 32 above) 198.
80 Chisupa (n 79 above) 198 (no clearer reference available).
81 Act 35 of 1996.
82 Chisupa (n 79 above) 201 (no clearer reference available).
83 Chisupa (n 79 above) 200-201 (no clearer reference available).
84 As above.
85 Chisupa (n 79 above) 198-199.
86 Chisupa (n 79 above) 200.
87 As above.
88 As above.
89 Chisupa (n 79 above) 201.
90 As above.
91 As above.
92 Report of the Tanzanian Labour Reform Task Team (n 48 above).
93 Taylor (n 12 above) 59-60.
94 E Kaseke 'Social protection in SADC: Developing an integrated and inclusive framework - The case of Zimbabwe' in Olivier & Kalula (n 32 above) 220.
95 As above.
96 As above.
97 As above.
98 As above.
99 Kaseke (n 94 above) 224.
100 See in general Olivier & Kalula (n 53 above) 658.
101 Olivier & Kalula (n 53 above) 660.
102 Olivier & Kalula (n 53 above) 668.
103 As above. Olivier & Kalula summarise SADC's objectives as follows: ' ... the promotion of economic and social development and the establishment of common ideals and institutions ... The treaty commits member states to the fundamental principles of sovereign equality of members, solidarity, peace and security, human rights, democracy and rule of law, equity, balance and mutual benefit.'
104 OAU Doc OAU/CAB/LEG/67/3/Rev 5.
105 L Jansen van Rensburg & MP Olivier 'International and supra-national law' in Olivier et al (n 14 above) 633. See also BO Okere 'The protection of human rights in Africa and the African Charter on Human and Peoples' Rights: A comparative analysis with the European and American system' (1984) 6 Human Rights Quarterly 141 147.         [ Links ]
106 As above.
107 L Jansen van Rensburg & L Lamarche 'The right to social security and assistance' in D Brand & C Heyns (eds) Socio-economic rights in South Africa (2005) 232.         [ Links ]
108 As above.
109 Olivier & Kalula (n 53 above) 670-671.
110 Holzman et al (n 3 above) 7.
111 As above.
112 As above.
113 As above.
114 As above.
115 As above.
116 As Holzman et al (n 3 above) 7 correctly argue: 'This is obviously a broad category with a varying quality of portability, as the national social law varies greatly across countries. Most legal immigrants who do not benefit from bilateral agreements fall within this category.'
117 As above.
118 As above.
119 As above.
120 As above.
121 See para 3 above.
122 See MP Olivier 'Acceptance of social security in Africa' paper delivered at the ISSA Regional Conference for Africa held at Lusaka, Zambia, from 9-12 August 2005 15.
123 See sec 2.10 above.
124 Committee of Inquiry into a Comprehensive System of Social Security for South Africa: Transforming the Present - Protecting the Future draft consolidated report Pretoria (2002) - Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Taylor Report) http://www.welfare.gov.za/documents/2002/May/pdf (accessed 30 August 2007) 561.
125 As above.
126 As above.
127 As above.
128 Taylor Report (n 124 above) 562-563.
129 Taylor Report (n 124 above) 564.
130 Olivier (n 122 above) 15.
131 Olivier et al (n 2 above) 58.
132 See art 2 of the Draft Protocol.
133 Proposed sec 324(2) of the Social Security Bill 2005.