Social protection for Malawian migrants in Johannesburg: Access, exclusion and survival strategies

Redson Edward Kapindu

Deputy Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC); Lecturer, Department of Public Law, University of Johannesburg, South Africa

SUMMARY

Many migrants from Southern Africa come to South Africa every year in search of a better life. This article explores the extent to which foreign African migrants are covered or excluded by the social protection regime in South Africa, using the situation of Malawian migrants as a case study. The article demonstrates that there are both normative (or formal) exclusions, as well as practical exclusions from social protection faced by these migrants. In light of this grim reality, the article explores the various survival strategies that these migrants adopt in order to hedge against the risk of socio-economic shocks. The article shows that there are well-developed informal social protection networks largely based on nationality and kinship. Another key finding in the study is that, for many migrants, the movement to South Africa is in itself a social protection measure to protect against existing or future socio-economic risks and vulnerabilities in their native state. The article suggests that the experiences of Malawian migrants in Johannesburg are similar to the experiences of foreign migrants in various metropolitan societies in Eastern and Southern Africa.

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* LLB (Malawi), LLM (Human Rights and Democratisation in Africa) (Pretoria); redson@ saifac.org.za. This article is derived from the results of a field survey the author conducted on the Social Protection of Malawian Migrants in Malawi on behalf of the Forced Migration Studies Programme (FMSP) at the University of the Witwatersrand. My profound gratitude goes to the FMSP and the Institute of Development Studies at the University of Sussex for granting permission to publish this article that is based on those research findings. I would also like to express great appreciation to Prof Loren Landau and Dr Ingrid Palmary of the FMSP, and Dr Rachel Sabates-Wheeler of the Institute of Development Studies at the University of Sussex for their invaluable comments at various stages of this work.
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2 J Crush 'South Africa: Policy in the face of xenophobia' in MPI, Country Profiles (2008) http://www.migrationinformation.org/Profiles/display.cfm?id=689 (accessed 12 March 2009). See also G Goodwin-Gill 'International and national responses to the challenges of mass forced displacement' in J Handmaker et al (eds) Advancing refugee protection in South Africa (2008) 33, where he states that a reasonable estimate of migrants in South Africa is in the range of 1 to 2 per cent of the total population (ie between 500 000 and one million). More recently, Martin has suggested that as of 2010, South Africa was hosting between two to eight million illegal immigrants. See G Martin 'Feature: Illegal migration and the impact of cross border crime' DefenceWeb 9 March 2011 http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=14001:feature-illegal-migration-and-the-impact-of-cross-border-crime&catid=87:border-security&Itemid=188 (accessed 5 April 2011).
3 ILO Committee on Employment and Social Policy Social security standards and the ILO campaign for the extension of social security GB303 ESP_3_[2008-10-0169-1]-En. doc (Geneva, ILO: 2008) para 14.
4 As above.
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7 Eg, more recently, in Law Society of South Africa & Others v Minister for Transport & Another 2011 1 SA 400 (CC), social security has been described as public financial support for people who are poor, have a disability or are vulnerable (para 45). This is evidently a very narrow conception of social security as it ties social security to 'public financial support'. It does not extend to informal and non-pecuniary forms of social security. The narrowness, though, seems explainable from the fact that the definition of social security was not necessarily germane to the determination of the case. The point was simply made by the Minister in passing, and the case rested on other issues surrounding the Road Accident Fund in South Africa. The Constitutional Court simply adopted the Minister's submissions in this regard.
8 AH Dekker 'Informal social security: A legal analysis' unpublished LLD thesis, University of South Africa, 2005 6.
9 As above.
10 As above.
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¹² 1995 3 SA 391.
13 Makwanyane (n 12 above) para 224.
14 Olivier (n 11 above).
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16 Dekker (n 8 above) 7.
17 ESCR Committee General Comment 19: The Right to Social Security (art 9) (GC 19) UN Doc E/C.12/GC/19.
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¹⁹ See Committee of Inquiry Into a Comprehensive Social Security System Transforming the Present - Protecting the Future (Draft Consolidated Report) March 2002, 41. The Committee was chaired by Prof Viviene Taylor, hence the term 'Taylor Report' (my emphasis).
²⁰ Swart (n 6 above) 56D3-56D4.
²¹ Sec 27(1) of the South African Constitution guarantees the right to social security for everyone.
22 Mpedi (n 18 above).
23 NKabeer Mainstreaming gender in social protection for the informal economy (2008) 4.
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25 Kabeer (n 23 above).
²⁶ Sabates-Wheeler & Waite (n 24 above).
27 Discovery Health Ltd v Commissioner for Conciliation, Mediation and Arbitration & Others Case JR 2877/06 (unreported, decision of 28 March 2008, Labour Court of South Africa).
28 Discovery Health Ltd (n 27 above) para 45.
29 As above.
30 As above.
31 [1989] 1 SCR 143.
32 As above.
33 As above.
³⁴ Sabates-Wheeler & Waite (n 24 above).
35 NR Kanyongolo 'Social security and women in Malawi: A legal discourse on solidarity of care' unpublished PhD thesis, University of Warwick, 2007.
36 1998 1 SA 765 (CC).
37 As above.
38 As above.
39 F Belvedere et al 'Realising rights: The development of health and welfare policies for asylum seekers and refugees in South Africa' in Handmaker et al (n 2 above) 248.
40 As above.
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42 2004 6 SA 505 (CC).
43 Khosa (n 42 above) para 47.
⁴⁴ See Filartiga v Pena Irala 19 ILM 966 (1980). See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, ICJ Reports (1971) (Namibia Opinion) 16; South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Second Phase 37 ILR (1966) 243 & 454.
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46 Olivier (n 45 above) 386-387.
47 Khosa (n 42 above).
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⁴⁹ See sec 5(1)(c) of the Act. The Act does, however, grant the Minister responsible powers to prescribe some categories of persons that might also benefit from the provisions of the Act. In the case of Government of South Africa & Others v Grootboom & Others 2000 11 BCLR 1169 (CC), the Constitutional Court of South Africa, elucidating on state obligations in respect of socio-economic rights generally (of which formal social protection measures form part), and the right to housing, in particular, stated that '[a] society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality ... Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril should not be ignored by the measures aimed at achieving realisation of the right. [T]he Constitution requires that everyone must be treated with care and concern. If the measures ... fail to respond to the needs of those most desperate, they may not pass the [reasonableness] test' (para 44).
50 Millard (n 48 above) 41.
51 As above.
52 Dekker (n 8 above) 6.
53 2000 3 SA 936.
54 Para 36.
55 The right to human dignity is protected under sec 10 of the Constitution of South Africa.
56 Sec 7(2) of the Constitution.
57 J Sward & R Sabates-Wheeler 'Social protection of migrants from the global south: Protection gaps and strategies to "self-insure"' Development Research Centre on Migration, Globalisation and Poverty: Briefing Paper 14 (2008) http://www.migrationdrc.org/publications/briefing_papers/BP14.pdf (accessed 12 March 2009).
⁵⁸ Sabates-Wheeler & Waite (n 24 above).
⁵⁹ Bloch (n 1 above).
60 Not his real name.
61 See n 27 above.
62 Discovery Health case (n 27 above) para 30.
63 Discovery Health case (n 27 above) para 33.
64 See sec 27(1)(a) of the Constitution.
65 Dekker (n 8 above).
66 See Belvedere et al (n 39 above).
67 LB Landau 'Regional integration, protection and migration policy challenges in Southern Africa' in Handmaker et al (n 2 above) 37.
68 Act 84 of 1996.
69 See ILO (n 3 above).
70 Cap 26:03 Laws of Malawi.
71 Secs 34 & 35 of the Act (n 70 above).
72 Chilwa Approved School in Zomba.
⁷³ Cap 33:02 Laws of Malawi.
74 n 49 above.
75 As above.
⁷⁶ Sabates-Wheeler & Waite (n 24 above).
77 Khosa (n 42 above) para 76.
78 As above.
⁷⁹ Sabates-Wheeler & Waite (n 24 above).
⁸⁰ Dekker (n 8 above).
81 Millard (n 48 above).
82 ESCR Committee General Comment 19 (n 17 above) paras 36-38.