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.