Examining the legal protection of illegal immigrants under South African labour law
Abstract
Illegal labour migration remains a persistent issue in South Africa, as it has
challenged and reshaped the South African labour law from previously what it was.
The infamous decision of Discovery Health and Kylie cases have reshaped the
interpretation of illegal contract, as it has opened the door for persons employed in
such contract the possibility to claim for labour protection. The illegality of their
employment result to them being labelled as the vulnerable group. Their
vulnerability opens problems that practically these persons they cannot resolve, of
which exploitation and unfair dismissal are included. This research analyses the legal
position of undocumented migrants after the decision of Discovery Health. This
research analyses the legal position of undocumented migrants, with special
reference to the after math of the Discovery Health case. This research considers
the South African labour law provisions which extend its protection to
undocumented migrants, also brief reference is also made to protection of
undocumented migrants in other jurisdiction for comparison. The research
concludes that, the Discovery Health decision have changed the interpretation of
illegal employment by extending legal protection to undocumented migrants,
however, practically, they are still exploited and dismissed unfairly among other
things. Additionally, it proposes that the current lacuna could be resolved by firstly
amending the LRA in a way that it will explicitly include undocumented migrants in
the definition of an employee in furthering the purpose and the spirit that is
enshrined in the Constitution. Secondly, to establish a legal certainty where
legislatures adapt new guidelines and rules for courts, tribunal and forums to deal and adjudicate matters concerning undocumented migrants.
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