Fortress South Africa and the deconstruction of ApartheidÕsmigration regime

Jonathan Crush

Department of Geography, QueenÕs University and Project Director, Southern African Migration Project, South Africa

Received 3 March 1998; in revised form 13 August 1998

Abstract

South AfricaÕs new democratic government inherited a system of cross-border migration management rooted in the abusive

practices of the past. Under apartheid, employers such as mining companies and white farmers, were exempted from normal

immigration legislation. The result was legislation and practices that are in direct con¯ict with the new governmentÕs commitment to

transparency, equality, accountability and fundamental human rights. The practices permitted by this system have continued after

1994. This paper documents the continuities in international migration policy and practice between the old and new South Africa

and highlights the dilemmas which the government faces in transforming inherited policy. The paper critically analyses the

regulatory framework of the bilateral labour agreements and the Aliens Control Act. The paper then highlights policy proposals

that contravene the discourse of the fortress and assesses, pessimistically, the likelihood of their implementation before the 1999

elections. Ó 1999 Published by Elsevier Science Ltd. All rights reserved.

Keywords: Migration; Policy; South Africa; Post-apartheid

1. Introduction

``Just as the country is trying to come to grips withdetermining and plotting strategies to meet its peo-pleÕs needs and to develop, it faces a deluge of mi-grants, mainly illegals. That this would causexenophobia and resentment should not be surpris-ing. However, we also recognize that we are per-ceived as an island in a sea of poverty, making usa magnet for migration'' (M.G. Buthelezi, Ministerof Home A�airs, February 1998).

The new South African government inherited a sys-tem of cross-border migration management character-ized by corruption, racial double-standards and specialprivileges for certain employers (Reitzes, 1998, 1995a;Dolan, 1995; Sinclair, 1996; Crush, 1998a,b). Four yearsafter the countryÕs ®rst democratic elections, the cen-trepiece of the apartheid regulatory framework, theAliens Control Act of 1991, remains in force. The fun-damental question is whether the policy instruments ofthe old regime ± the Aliens Control Act, bilateral labourtreaties, the secretive Immigration Board, unaccount-

able policing and the sometimes byzantine Home A�airsbureaucracy ± provide appropriate mechanisms for thegovernance of this movement.

The new South African government has been ex-tremely slow to review inherited immigration and mi-gration legislation and policy. The appointment of theInkatha Freedom Party leader Buthelezi to the immi-gration portfolio in a government of national unity en-sured that limited change would emanate from withinthe Department of Home A�airs (DHA). More recently,immigration and migration have become highly con-tentious issues and the political space for bold policyinitiatives has shrunk dramatically.

The overall drift of immigration and migration policysince 1994 has been towards greater control and re-striction. Immigration ®gures are down and the gov-ernment has launched a ®erce o�ensive against what itperceives to be a major threat to its programme of socialand economic upliftment ± undocumented or unautho-rized migration to the country. In the case of temporarymigration, migrants seeking legal access to South Africaare still subject to an anachronistic (and probably un-constitutional) dual system of control dubbed the ``twogates'' or ``two doors'' policy (Department of Labour,1996, p. 172). The gates include (a) bilateral labour

Geoforum 30 (1999) 1±11

0016-7185/99/$ ± see front matter Ó 1999 Published by Elsevier Science Ltd. All rights reserved.

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agreements between South Africa and Mozambique,Botswana, Lesotho, Swaziland and Malawi; and (b) theAliens Control Act of 1991. The Aliens Control Act isan omnibus piece of legislation governing all facets ofimmigration to South Africa, dating back to the pre-apartheid era (Peberdy and Crush, 1998). The Actprovides speci®c exemptions which make legal andadministrative room for bilateral labour treaties withother countries and temporary employment schemes fornon-South African workers.

Undergirding this post-apartheid restrictionism hasbeen a new discourse that borders, at times, on thexenophobic. At the heart of the discourse which framespolicy choices about migration and immigration is a setof images about the negative impact of foreign citizensin the country. Thus, ``illegal aliens'' cause crime, bringdisease, take jobs from South Africans, depress wages,consume social services and exacerbate unemployment(de Kock et al., 1994; Charney, 1995; Dolan andReitzes, 1996; Reitzes, 1995a; McDonald et al., 1998).This has been accompanied by rising demands frominterest groups within South Africa for a blanket ``SouthAfricans ®rst'' or ``South Africans only'' policy in thelabour market (Desai, 1994; Southall, 1994; Toolo andBethlehem, 1994; Cassim, 1995).

There is no authoritative study of the impact of un-authorized foreign migrants on local labour markets.The circumstantial evidence suggests that migrants areincreasingly well-represented in the ranks of temporaryworkers and that their poor socio-economic positionand undocumented status in South Africa make themvulnerable to super-exploitation, low wages, poorworking conditions and abuse ± certainly nothing new inSouth Africa (Jeeves and Crush, 1996). These abusesseem to occur in all three sectors of the formal economyin which they are primarily involved ± commercialagriculture, construction and the service industry. Al-though the precise numbers involved are unknown (andprobably unknowable), there is considerable spatialvariation in the incidence of foreign-worker involvementin these sectors with the highest concentrations inGauteng, Mpumalanga and Kwazulu-Natal provinces.

How the South African government responds to thebroader challenge posed by undocumented migration isa critical determinant of the status and security ofworkers from outside the country. The current AliensControl Act is, as its name implies, a piece of legislationpremised on principles of control, exclusion and expul-sion. Many migrants are thus not only unprotected bylaw but vulnerable to its sanctions. The penalties includecriminalization, arrest, imprisonment and summarydeportation.

Despite the large gaps in our understanding of un-documented migration and temporary employment, andtheir inter-linkage, it is clear that there is little e�ectivemanagement of either. In the policy vacuum created, the

options and operatives of the ancien regime continue todominate. The paper critically examines the structure ofmigration governance inherited by the ANC-led gov-ernment and the problems to which it has given rise.Finally, the paper outlines recent political developmentsin this sphere and the prospects for deconstructing theold cross-border migration regime in Southern Africa.This task is part discursive and part political. A sea-change is required not only in the policy framework butin the language and imagery within which these policyoptions are framed. When the Minister and his menframe the issues in the language and metaphors of theepigraph to this paper, it makes the construction of afortress the only rational choice.

2. Counting the ¯ood

South AfricaÕs 7000 km border is extremely porousand it is widely accepted that the ¯ow of documented(Fig. 1) and undocumented migrants to the countryfrom the SADC region and beyond has grown markedlysince 1990 (Dolan, 1995; Chimere-Dan, 1996; Minnaarand Hough, 1996; Sinclair, 1996; Department ofLabour, 1996; Maharaj and Rajkumar, 1996; Depart-ment of Home A�airs, 1997).

The recon®guration of longstanding patterns ofcross-border movement began in the 1980s, when anestimated 350,000 Mozambican refugees ¯ed to SouthAfrica (de Jongh, 1994). The in¯ux of Mozambicansinto South Africa has continued, and even escalated,since the end of the war ± producing a major policydilemma for both governments. They have been joinedby an escalating number of migrants from other parts ofthe region and Africa as a whole. O�cialdom and themedia talk constantly of the countryÕs borders beingawash with ``¯oods'' and ``waves'' of impoverishedmigrants from an Africa in chaos.

The numbers of unauthorized migrants and immi-grants (the two are rarely distinguished) within SouthAfrica are a source of considerable controversy. Wildlyvariable estimates are thrown around, with a generalupward trend over time. Before 1994, most estimates of

Fig. 1. SADC visitors to South Africa.

2 J. Crush / Geoforum 30 (1999) 1±11

the total number of undocumented migrants were below2 million (although even the basis of this ®gure is un-clear). By late 1994, police were citing ®gures of over 8million and 700,000 Mozambicans (Brunk, 1996,pp. 6±8). This was hardly surprising; those wishing formore resources for policing were always likely to exag-gerate the ®gures. Brunk (1996) critically reviews such®gures and concludes that ``we have too little knowledgeto justify any precise estimates or assumptions''.

Academic pseudo-science lends respectability to thehigh range numbers. The state funded Human SciencesResearch Council (HSRC) conducted a highly suspectsurvey in 1994±1995 and concluded that there were 9.5million non-South Africans in the country in June 1995,of which 4.1 million were there ``illegally'' (Minnaar etal., 1995; Minnaar and Hough, 1996, pp. 128±130). Themethodology used by the HSRC is completely indefen-sible. Despite public criticism from several commenta-tors, the HSRC ®gures continue to be uncriticallyrepeated by politicians and ``experts'' and are well-en-trenched in popular and political discourse on immi-gration (Crush, forthcoming).

The only vaguely reliable ®gures on unauthorizedresidence come from computerized records of legalentries and exits. This system (the Orwellian-soundingNational Movement Control System) automaticallyrecords anyone who overstays their temporary residencepermit. The number of overstayers still in the countrycan therefore be determined on any particular day. The®gures for 7 March 1997, for example, are listed inTable 1. They show a pattern of large-scale o�endingamongst recent entrants. The numbers settle down to

around 80,000 per annum within 2±3 years. This sug-gests a distinction could be made between illegal immi-grants (those who have been living in the country forlonger than 1±2 yr) and temporary overstayers (the vastmajority of o�enders). Interestingly, the vast majority ofoverstayers are from neighbouring states.

The DHA claims it is possible to calculate the totalnumber of undocumented migrants as a simple multi-plier of the overstay ®gures (Reitzes, 1998, p. 39). This isclearly incorrect. First, there is no record of how manyoverstayers subsequently leave the country clandestine-ly. In the case of Lesotho, the largest ``o�ender'' by far,the numbers are considerable. According to one source,a small bribe at the border post allows easy passage backhome with no questions asked (Coplan, 1997). Second,this data says nothing about those who entered withoutvisas or permits in the ®rst place, nor about those withfalse documentation. There is no sound basis forassuming any kind of statistical relationship between thefrequency of the three types of o�ence.

Why there should be such a high overstay rate is notclear. Many migrants may have intended this in the ®rstplace; others, through change in circumstances (such as®nding employment) may have decided to stay on andrisk being ejected later for changing their purpose ofvisit. Either way, entry to South Africa remains as easyat is has always been, provided that the stated reason forentry is not wage employment.

Despite this, it is apparent that some migrants dochoose to enter South Africa clandestinely by ``borderjumping''. South Africa has permeable borders with sixother SADC states. In the case of Mozambique, elec-tri®ed fencing and the Kruger National Park has tendedto push ``border-jumpers'' southwards to the mostheavily policed and forti®ed border ± running some 50km from Komatipoort to Namaacha in MpumalangaProvince. Along the northern border with Zimbabwe, a137-km long electric fence was erected in 1986. Evenhere, it appears to be relatively easy to gain accessthrough or under the fence. South Africa also shares abasically unguarded 250 km border with Swaziland and1000 km border with Botswana. Numerous footpathsrun to South Africa through Swaziland from Mozam-bique and through Botswana from Zimbabwe. Alongthe 60 km stretch of border joining southern Mozam-bique with northern Kwazulu-Natal, observers havenoted 80 ``well-de®ned'' footpaths across the interna-tional border (Minnaar and Hough, 1996, p. 148).Landlocked Lesotho also shares an extremely porousboundary with South Africa. Access by any non-SouthAfrican determined to get into the country is thusvirtually unrestricted.

The actual numbers of border-jumpers are unknownand unknowable. The o�cial estimate is that one personcrosses the border every 10 minutes. However, thiswould only amount to a ®gure of 50,000 per year-hardly

Table 1

Visa overstayers in South Africa, 1997

Year Overstayers Cumulative

PRE-1980 1352 1352

1980 1499 2851

1981 1752 4603

1982 2961 7564

1983 2036 9600

1984 1936 11,536

1985 533 12,069

1986 98 12,167

1987 912 13,079

1988 707 13,786

1989 1139 14,925

1990 18,399 33,324

1991 12,885 46,179

1992 83,960 130,139

1993 82,243 212,382

1994 84,243 296,625

1995 128,778 425,403

1996 233,472 658,875

1997a 169,337 828,212

Total 828,212 828,212

Source: Compiled from DHA data.a 1997 to March 1997.

J. Crush / Geoforum 30 (1999) 1±11 3

a deluge. National migration surveys of Lesotho, Mo-zambique and Zimbabwe by the Southern African Mi-gration Project show that 42% of the adult populationhas been to South Africa at some point (with a high of81% in Lesotho and a low of 23% in Zimbabwe)(Table 2). Asked about the mode of transport (a sur-rogate for method of entry), only 8% went on foot (thenormal method of ``border-jumping''), with 14% goingby train and 71% by motorized transport. Some 89%had o�cial passports from their home country beforeentering South Africa and 72% had the appropriateSouth African visa. The study concludes that clandestinecross-border movement is ``relatively minor and thegeneral picture is one of a highly organized and regu-larized movement of people'' (McDonald et al., 1998).

Since the early 1990s, the government has devotedvast resources to the arrest and deportation of foreignmigrants. The policy has intensi®ed since the 1994election. Deportation ®gures to neighbouring SADCstates show a dramatic escalation in the last 5 years(Table 3). There is no necessary connection betweendeportation ®gures and the actual numbers of undocu-mented migrants in the country, as the DHA sometimesclaims. First, the rising ®gures re¯ect the intensity ofpolicing and the resources put into deportation. Second,the ®gures do not take into account the fact that manyundocumented migrants are arrested and deported morethan once in any one year period. Police claim that 50%of those removed to neighbouring states return withinthree months. Third, the national background of de-

Table 2

Cross-border migration to South Africa

Visited South Africa Lesotho Mozambique Zimbabwe Total

Yes (%) 81 29 23 42

No (%) 19 71 76 58

Do not know 0 0 1 ÿMethod of entry on most recent visit

Foot (%) 4 14 14 8

Bus (%) 17 20 35 22

Air (%) 0 3 5 2

Car (%) 6 19 8 8

Horseback (%) ÿ 1 1 ÿTrain (%) 5 38 19 14

Taxi (%) 68 4 16 41

Other (%) 1 1 2 4

Possession of passport

Yes (%) 98 75 77 89

No (%) 2 23 23 11

Do not know 0 3 0 0

Possession of entry visa/permit

Yes (%) 88 73 30 28

No (%) 12 23 70 72

Do not know 0 4 0 0

Source: McDonald et al. (1998).

Table 3

Deportations from South Africa

1990 1991 1992 1993 1994 1995 1996 1997

Angola 1 4 1 18 39 69 27

Botswana 596 604 485 105 48 11 7 77

Lesotho 3832 4440 6235 3090 4073 4087 3344 4077

Malawi 78 177 157 250 398 1154 1920 2284

Mozambique 42,330 47,074 61,210 80,926 71,279 13,1689 157,425 146,285

Namibia 337 219 88 84 43

Swaziland 1225 1828 2283 789 981 837 1589 1055

Tanzania 6 15 47 52 241 836 998 301

Zambia 1 1 11 1 16 23 20 47

Zimbabwe 5363 7174 12,033 10,861 12,931 17,549 14,651 21,673

Source: Compiled from DHA statistics.

4 J. Crush / Geoforum 30 (1999) 1±11

portees is no guide to the national breakdown of theundocumented population. Mozambicans, in particular,are easy and cheap targets for the police and are par-ticularly vulnerable to arrest and mass deportation.Fourth, the police target inner-city areas and employ-ment sites (such as construction sites) in arrestingundocumented migrants.

Given the impossibility of accurately determining thenumbers of undocumented migrants in South Africa, itis unsurprising that similar problems arise in the deter-mination of participation rates of foreign migrants inthe labour market. There are a number of reasons forthis: ®rst, many employees, and their employers, have avested interest in not making their presence known tothe authorities. One of the basic problems with thesystem as it exists in South Africa, and therefore achallenge to proper management and monitoring, isprecisely that many employees are criminalized byexisting legislation. Second, there is no systematic col-lection of employment data by the state in the sectors inwhich migrants tend to be concentrated. Employers tendto be individuals, small companies and contractors.There is no obligation for them to report employmentrecords and no obligation to distinguish the place oforigin of those workers. Third, there are no centralizedemployment records (except in the mining industry).And ®nally, many migrants are casual labourers or workoutside the formal sector altogether in the informal andsmall enterprise sectors (Rogerson, 1998; Peberdy, 1998).

The accuracy or reliability of the ®gures on undocu-mented migration is irrelevant to a discourse that con-structs all migrants as ``illegal aliens'' (whether they arefrom Lesotho, Liberia or Latvia); and all ``illegal aliens''as parasitic and, by de®nition, a direct threat to thematerial and social interests of all South Africans. Recentresearch, which shows a general respect for the integrityof national borders in countries such as Lesotho, Mo-zambique and Zimbabwe, certainly challenges the accu-racy of this set of images (McDonald et al., 1998). Thepossibility that undocumented migrants may actuallycreate wealth and employment is precluded. The HSRC-based ®gures have been called into serious question by atleast two state-appointed commissions and the recentSouth African census (Department of Labour, 1996;Department of Home A�airs, 1997). Yet, immigrationo�cials and the police continue to cite the discreditedstudy as part of a bellicose, anti-immigrant rhetoric dis-guised as a concern for the well-being of South Africans.When the walls of the fortress need fortifying, the enemywithin and at the gates is seen as overwhelming.

3. Two gates

Inherited bilateral labour agreements govern the re-cruiting and employment of non-South African miners

for work on the South African mines. Historically, thetreaties were a cornerstone of the contract labour systemto the mines. The agreements, in their current form, dateback to the 1960s and 1970s. The South African miningindustry has always enjoyed ``special status'' in its abilityto operate outside the rules and regulations governingother employers. In the construction and operation ofits ``regional labour empire'', the mining industry vir-tually pursued its own ``foreign policy'' (Crush et al.,1991). Privilege and entitlement are hard habits torelinquish.

The Malawi agreement lapsed following the expul-sion of Malawians from the mining industry in 1986after a dispute over HIV testing (Chirwa, 1995, 1997). Inother cases, administrative practice has moved beyondthe provisions of the original agreement. Administrativeamendments (through the signing of diplomatic notes)have been made to the agreements to accommodate, forexample, changes in legislation in the home countries ofmigrants. Other formal provisions have long been su-perseded in practice (Crush and James, 1995). All minerecruiting still falls under the treaties. The conditions aresummarized in the standard annual contract for thecountryÕs 200,000 foreign miners from Lesotho,Mozambique, Swaziland and Botswana.

The extreme forms of exploitation of miners havebeen mitigated somewhat since 1994 by the passage ofnew labour and mine health and safety legislation. In1995, in one of the few progressive moves on migrancyper se, the Cabinet announced that long-serving foreignminers who had voted in the 1994 elections could applyfor permanent residence in South Africa. Some 52,000miners applied for the ``minersÕ amnesty'' and havebeen granted residence. Research amongst minersshows that the o�er was misunderstood by many andthat those who applied did so to gain certain strategicadvantages (such as entitlement to pension bene®ts andaccess to the job market in the event of retrenchments).Very few intend to settle permanently in South Africa(Sechaba Consultants, 1996; de Vletter, 1998). Themines continue to recruit and employ signi®cant num-bers of foreign migrants and have strenuously arguedfor the right to hire non-South Africans under the termsof the bilalteral treaties. Suggestions that the treatiesshould be restructured or abolished are vigorouslyresisted.

The ``second gate'', which governs all other forms ofentry to South Africa, is the Aliens Control Act of 1991.The Aliens Act has been described as a ``draconianapartheid throwback'' and ``apartheidÕs last act'' and isdeeply rooted in the polluted soil of racism and apart-heid (Crush, 1998a,b, p. 2; Peberdy and Crush, 1998).The Act was amended in 1996 to further tighten upon immigration of all kinds. The bulk and substance ofthe act, and the way in which it is interpreted andapplied, remains intact. South Africa has virtually no

J. Crush / Geoforum 30 (1999) 1±11 5

immigration jurisprudence, and the normal channels ofreview and appeal of immigration decisions, are fore-closed (Crush, 1998a,b).

Migrant workers outside the mining industry fall (likeall prospective temporary residents) under the AliensControl Act. This means that employers have to con-vince the DHA that there are no South Africans avail-able to do the job. The evidence suggests that not manyunskilled or semi-skilled workers bother to subjectthemselves to a bureaucratic application process thatwould, in any event, have little chance of success. Inaddition, few companies or individual employers areprepared to make the case for entry with the DHA foran individual worker, as they regularly do for skilled orprofessional people from abroad. Both therefore havean interest in circumventing the Act. Temporary work,particularly in the urban areas, is thus driven under-ground. Employers are more than willing to risk thesanction of the Aliens Control Act in order to extractthe advantages which ¯ow from employing vulnerableundocumented migrants.

The apartheid government was always internally di-vided on the question of employing non-South Africanlabour at the lower end of the job market (Crush et al.,1991, pp. 110±114). Maxine Reitzes has pointed tosimilar divides after 1994 resulting in an immigrationpolicy that she calls ``diverse and inconsistent'' (Reitzes,1995b, p. 3). In fact, under Buthelezi, the ``fortressSouth Africa'' position of the late apartheid years hasgained ascendancy. In 1994, the DHA formalized aninformal policy that no immigrants in unskilled or semi-skilled categories would be admitted to work in thecountry. The DHA placed the onus on employers to giveemployment preference to South Africans. This was alsostated o�cial policy in the past but, as Cooper (1995)points out, ``it is fairly clear that this policy was notadhered to with much seriousness''.

The 1996 Amendment Act explicitly precludes issueof work or immigration permits to foreign workerswishing to follow an occupation in which there aresu�cient South Africans to do the job. The DHA claimsthat it consults the Department of Labour, trade unions,industrial councils, labour organizations, educationalinstitutions, professional and legislative bodies beforedeciding to approve or refuse a permit. This is inherentlyunlikely (Department of Labour, 1996). In this restric-tionist environment, it is becoming increasingly hard forany non-South African (including highly skilled mi-grants and immigrants) to legally access the South Af-rican labour market (Table 4).

Unauthorized migrants must either enter the coun-try clandestinely, overstay temporary residence permits,or secure false documentation. Employers in sectorsusing foreign temporary workers have traditionallybeen able to exert su�cient political leverage to avertlarge-scale prosecution for their use of this labour.

This is a calculated risk on the part of employers whoeither do not enquire too closely about the origins oftheir workers or do not particularly care as long asthe labour is available and cheap. South African em-ployers of temporary labour undoubtedly want tocontinue to employ workers from outside the country.Ironically, it is their very ``illegality'' that makes themattractive as employees although employers tend tostress that South Africans will not accept the work atthe wage rates they can a�ord. It is this situation thatSouth African policy makers are increasingly exercisedabout. The commercial farming sector is an excellentexample.

In the case of migrant farmworkers, the normalprovisions of the Aliens Control Act are meant to apply.However, here again, politically powerful employerswere able to gain special status under apartheid. UnderSection 41 of the Act, the state may grant temporaryresidence and work permits to ``prohibited persons'' (i.e.individuals in contravention of the Act). Hence, all thenormal sanctions imposed on illegal immigrants (in-cluding arrest and deportation) could be waived at theMinisterÕs discretion. In e�ect, Section 41 was designedto allow certain employers to register their undocu-mented workers and thus legitimize their use of illegallabour. The fact that Section 41 permits are also called``special agricultural permits'' baldly indicates that otheremployers need not apply.

The perpetuation of this kind of post-hoc registrationsystem is explicitly envisaged in the 1996 AmendmentAct, which retains the clause intact. The use of the Sec-tion 41 system by farmers has grown signi®cantly in re-cent times, with 11,006 permits issued between 1994 and1996 (6466 in 1996 alone). However, the system is stillextremely lax with large numbers of workers going un-registered. The reasons for this are probably related tothe inconvenience of registering short term employees,the exorbitant fees charged, the virtually non-existentsanctions for employing undocumented migrants and theadvantages of keeping labour covert and vulnerable.

Table 4

Immigration to South Africa, 1990±1996

Year Permanent residence permits issued

1990 14,499

1991 12,379

1992 8686

1993 9824

1994 6398

1995 5064

1996 5407

Total 62,257

Source: SAMP migration data base.

6 J. Crush / Geoforum 30 (1999) 1±11

4. The usual victims

The legislative continuities in state policy before andafter 1994 can also be clearly seen in practice; particu-larly in two areas: (a) deportation policy; and (b) thelack of regulation of employment conditions. The po-litical transformation in South Africa has thus madevery little di�erence to the lives of migrants enteringSouth Africa or to non-South Africans living in thecountry and engaged in temporary work. Apartheid-eralegislation (such as the Aliens Control Act) and bilaterallabour agreements continue to constitute the basic ad-ministrative structure of migration governance. Certainemployers, such as the mines and the farms, have con-tinued to enjoy special dispensations to recruit andemploy foreign migrants virtually at will. While therehave been some improvements in working and livingconditions on the mines, working conditions on thefarms and in other sectors remain unregulated.

The Aliens Control Act has recently been shown tohave ``major and signi®cant constitutional failings''(Klaaren, 1998, p. 70). The Act violates constitutionalprinciples of equality, transparency and accountability;is in con¯ict with international law; and permits wide-spread human rights abuse (Crush, 1998a,b). There isconsiderable evidence that the police and immigrationo�cials (under the Act, often one and the same) enforcethe Act with the same vigour and disregard for basicrights as they used to enforce the pass laws (Duncan,1998; Johnston and Simbine, 1998). In their drive toidentify and deport ``aliens'' the police have speci®callytargeted Mozambicans and Zimbabweans and tend toraid the living and work places of migrants. In the lattercase, construction sites and pick-up points for day la-bourers are targeted. Police methods for ``sni�ng out''undocumented migrants are chillingly described in``police-speak'' by researchers (Minnaar and Hough1996, pp. 165±167):

The internal tracing units of the (police) havebecome adept at spotting an illegal (sic). Theirmethod of apprehending an illegal is usually basedon either information supplied by a member of thepublic or suspicions may be aroused by certainactions, behaviour, dress or manner of speaking....In trying to establish whether a suspect is an illegalor not, members of the internal tracing units con-centrate on a number of aspects. One of these is lan-guage: accent, the pronouncement of certain words.Some are asked what nationality they are and ifthey reply ``Sud'' African this is a dead giveawayfor a Mozambican, while Malawians tend to pro-nounce the letter ``r'' as ``errow''. In Durban manyclaim to be Zulu but speak very little. Some of thosearrested as illegal aliens are found with home-madephrase books in their pockets. Often they are

unable to answer the simplest questions in Zuluor are caught out if asked who the Zulu king is.Often the reply is ``Mandela'' .... Appearance isanother factor in trying to establish whether thesuspects are illegal ± hairstyle, type of clothingworn as well as actual physical appearance. In thecase of Mozambicans a dead giveaway is the vacci-nation mark on the lower left forearm. SomeMozambicans, knowing this, have taken to eitherself-mutilation (cutting out the vaccination mark)having a tattoo put over it, only wearing long-sleeved shirts and never rolling up their sleeves, orwearing a watch halfway up the arm to cover themark.

One could be forgiven for thinking that one wasreading a police manual description of the enforcementof the apartheid governmentÕs in¯ux controls and passlaws (supposedly abolished in 1986). Skin colour (inanother echo from the past) is a major marker of ille-gality for the police. Abuse and corruption are endemicin a system where there is little accountability or respectfor the law amongst law enforcement o�cers (Johnstoneand Simbine, 1998, pp. 175±176):

I had a South African identity document (ID), butthe police found me at Park Station and asked mefor a passport. When I showed them an ID, they re-moved my picture on the ®rst page and ordered meto their police van. When I asked why they were de-stroying it they said it was a ``fake ID''. They alsosaid I was ``too black'' to qualify for South AfricanID.

In most cases, especially here at Protea Northpolice station, people used to pay up to R300 (inbribes to avoid deportation). But if those policemenare bankrupt they even take a mere R20. The prob-lem with them is that they know that you are sellingsomething like vegetables they keep on coming toyou, particularly at the end of the month. Theycome and threaten you with deportation knowingthat you are going to give them money. Duringthese times they usually demand up to R500.

The police found us ... and arrested us afterdemanding our passports. They asked if we had``R300 bail'' to give them before they took us tothe police station, because once we are there thebail amount was going to be very high. We toldthem we did not have money. In the police stations... we were persecuted by both police and prisoners.Prisoners used to say ``They are visitors who arepassing, let us use them before they see the light

J. Crush / Geoforum 30 (1999) 1±11 7

again''. We could not retailiate because every timewe tried to protect ourselves, police used to beatus severely with Ndhuku (a sjambok or whip) ...We were deported at Gaxa after having been perse-cuted on the way by the police. And after theydumped us we started our journey back to SouthAfrica again.

Since 1994, the resources devoted to tracing, arrestingand deporting ``aliens'' have increased substantially. Inthat year, the number of police Internal Tracing Units(ITUs) was increased from 3 (based in Nelspruit,Johannesburg and Welkom) to 14 (in most major urbancentres). The ITUs currently have 1000 police personnel.In 1993 the police established a national Aliens Inves-tigation Unit to investigate those aiding and abettingundocumented migrants. In late 1994, the Minister ofHome A�airs called on the public to report undocu-mented migrants to his department and the police.South African citizens are o�ered rewards by the ITUsfor calling Crime Stop numbers and reporting non-South Africans.

In contrast to the treatment of undocumentedmigrants, their employers continue to be treated le-niently by the authorities. The Amendment Act contains``stringent provisions'' for employing ``aliens'' or enter-ing into business with them or harbouring them. TheAct provides for ®nes of up to R40,000 and imprison-ment for up to 5 years for providing work or aid to an``illegal alien'' and makes employers liable for the costsof repatriation. Admission of guilt ®nes and paymentfor the deportation costs ensure that charges are notpressed. Under Section 32 of the Aliens Act, employersmay also argue that they acted in good faith in em-ploying a non-South African. In late 1994, the DHAdeclared that it would start cracking down on employersbut it remains to be seen whether employer sanctions, ifseriously applied, would have any e�ect on the abuse ofundocumented migrants.

The evidence suggests that working conditions andwages on the farms and other temporary employmentsectors are often dire. The rampant exploitation ofMozambican refugees by employers in the 1980s hascontinued since. On white farms and in urban areas``lack of documentation has rendered them vulnerable tosuper-exploitation and abuse by employers'' (Dolan andNkuna, 1995, p. 7). Press expos�es in 1990 indicated thatsome farmers were paying refugees only R30±40 permonth. Professional labour touts were also reported tobe dragooning labour from Mozambique and bring itover to the farmers at a fee of R100±150 per head. Theseworkers, virtual ``slaves'', were reported to the police ifthey refused to work who then arrested and deportedthem.

Migrants looking for temporary work are doublyvulnerable to low wages and exploitative working con-

ditions. Cooper notes that ``certain farmers are takingadvantage of the in¯ux of illegals and the vulnerabilityof their illegal status to pay poverty wages or not at all''(Cooper, 1995, p. 29). The South African Agriculturaland Plantations and Allied Workers Union (SAA-PAWU) notes that undocumented Mozambicans arewilling to accept much worse conditions than localworkers. Wages are as low as R80 per month on somefarms (less than the legal minimum wage in Mozam-bique itself). Non-payment is common. Workers areactively discouraged from joining the union and SAA-PAWU has had little success recruiting Mozambicans.Working conditions on the farms are bad; there are nohealth and safety controls; poor accommodation; andno minimum wages.

Similarly unregulated conditions prevail in theNorthern Province. Reporters found thousands workingillegally on farms in that area for R90±150 a month.Some farms in the Messina area pay Zimbabweanfarmworkers as little as R4 a day. Child labourers onfarms were being paid as little as R50 per month, withadult wages only double that amount. There are recur-rent reports in South Africa of employers manipulatingthe ``aliens control'' system in the most shameless way.One of the most common ploys, reported in both thefarming and construction industries, is to hire workerson a monthly contract and not to register them. Justbefore payday, a phone call to the local police ensuresthat the workers will be rounded up by the InternalTracing Unit and deported (Johnstone and Simbine,1998, p. 163):

The worst are the arrests. Even if you want to workon the plantations, at the end of the month beforeyou are paid you get arrested, you lose the wages,you are deported. If you are not deported you are®red. You can go to another plantation and thesame thing happens.

One study reports that in Mpumalanga there is alsowidespread collusion between farmers and DHAo�cials (Reitzes, 1995c).

These o�cials are ``selling'' Mozambican immigrantsto farmers, and the farmers, in turn, are ``buying''bonded labour and immunity from prosecution foremploying immigrants. Farmers pay for documentswhich legalize the status of Mozambicans, yet they keepthe papers. Thus, if the workers leave the farms, theycan be arrested and dealt with as ``illegals'', as they haveno documentary evidence of their legal status. They arethus e�ectively the property of the farmers, and theirbonded and insecure status renders them open to ex-ploitation and abuse. The farmers, on the other hand,are protected from prosecution as employers of illegalimmigrants, as they have the documentary evidence toprove that these workers are ``legal.''

8 J. Crush / Geoforum 30 (1999) 1±11

Evidence concerning the working and living condi-tions of undocumented migrants in other sectors is an-ecdotal at best. Until more research has been conductedit is impossible to say how widespread the reportedabuses actually are. At the very least, the anecdotes givesome sense of the range of problems that confront thedevelopment of a more humane and defensible tempo-rary work and migration regime. The ``illegal'' status ofmany temporary workers in South Africa makes themvulnerable in two senses. First, they have no rights andprotection under law. Indeed, the primary aim of theDHA is to identify them, arrest them, and deport themas expeditiously as possible. Second, some employers®nd this vulnerability and insecurity attractive and areanxious to employ non-South Africans precisely becausethey will accept wages and working conditions whichlocal workers will not.

5. Cracks in the fortress

Four years after the 1994 elections, the continuities inmigration and immigration legislation and governancebetween the old and the new South Africa are over-whelming. This is not to say that more progressivethinking has been absent or that there is not a debate ofsorts on the immigration issue. However, advocates of afundamental transformation (including certain voices inthe ANC and the Parliamentary Portfolio Committee onHome A�airs) have been hamstrung by the fact thatexecutive power over the issue currently rests (and willlikely continue to do so until the 1999 elections) in thehands of the pre-eminent fortress South African. As onelooks beyond 1999, and the possibility of an ANCHome A�airs minister, the interesting question is whatthe alternative voices are advocating.

The contested character of immigration policy withina multi-party government is clearly evident in the case oftwo immigration amnesties o�ered in 1996 to miners

and long-time ``illegal'' residents of South Africa fromthe SADC states. The ``SADC amnesty'' has givenpermanent South African residence to 180,000 citizensof neighbouring states who had lived in the country formore than 5 years. As Table 5 shows the vast majority ofthe applicants were Mozambicans (primarily refugeeswho never went home). The two amnesties were theinitiative of senior ANC Cabinet ministers and werestoutly resisted by the Department of Home A�airs on avariety of quite spurious grounds. Ironically, theDepartment was then charged with their implementa-tion. The Cabinet override has not extended much be-yond these two ``one-o�'' amnesties.

In a separate development, the South African De-partment of Labour published the results of its investi-gation into the South African labour market in 1996(Department of Labour, 1996). An entire chapter of thereport was devoted to the issue of migration and im-migration. This was followed, in 1997, by the release of aDraft Green Paper on International Migration by theDepartment of Home A�airs, written by an independentTask Team (Department of Home A�airs, 1997). TheGreen Paper and the Labour Market CommissionReport share the following policy positions:· a new regionalism in South African policy-making.

Neither is in favour of an open borders approach,and both counsel caution about the SADC DraftProtocol on the Free Movement of Persons 1 How-ever, both acknowledge the longstanding migrationties of South Africa and its neighbours and suggestthat migration policy should adopt a tieredapproached which distinguishes ®rst between SADC

Table 5

Applications for the SADC Amnesty at April 1997

Total applications Accepted Rejected Unprocessed

Lesotho 15,647 6987 7692 966

Botswana 1626 898 299 439

Swaziland 2898 1255 1121 522

Angola 145 73 36 36

Namibia 91 77 14 0

Zimbabwe 23,404 15,586 5692 2127

Mozambique 146,672 69,571 70,371 6730

Zambia 1042 344 235 468

Tanzania 207 92 44 71

Malawi 7742 5239 2090 413

Mauritius 122 106 6 10

Total 199,596 100,218 87,600 11,776

Source: SAMP migration data base.

1 The Draft Protocol was modelled on the European Union

precedent. The Protocol was tabled and rejected by the member states

of the SADC in 1997. Opposition was led by South Africa who have

since tabled an alternative, and far more restrictive, protocol. The text

of both protocols is available at: http://www.queensu.ca/samp/.

J. Crush / Geoforum 30 (1999) 1±11 9

and non-SADC migrants, and second, within SADCbetween migrants from Lesotho and Mozambiqueand those from elsewhere.

· policy positions on migration should be integratedwith those on regional trade and investment.

· the continued access of SADC country citizens to theSouth African labour market should be labour-marketdriven. The Green Paper outlines several suggestionsfor a humane and acceptable temporary work systembut also suggests that limits (in the form of negotiatedquotas) should be placed on the issue of work permits.

· inherited ``special privileges'' for the mining andfarming industries should be abolished. All employersshould be able to employ non-South Africans, if theyhave a demonstrable need to do so. The bilateral la-bour agreements should also be dismantled as partof this process. Both documents call for the abolitionof the ``two gates'' system and for a ``modernised pol-icy'' based on international norms and constitutionalprinciples (Department of Labour, 1996).

· the relaxation of controls over the temporary andpermanent importation of skills. Both documentshighlight South AfricaÕs severe skills shortages andthe di�culty of replacement from domestic sources.On the other hand, both caution against more openpolicies that would denude the SADC region of itsskilled workers and professionals.

· the Green Paper advocates far reaching transforma-tion of the institutions, ethos and legislative immigra-tion framework inherited from the past. The DHAwould be renamed the Department of Citizenshipand Immigration Services and devote its attentionto service rather than control. The police would nolonger be directly involved in immigration control.A new comprehensive Immigration Act would be en-acted founded on principles of due process and ad-ministrative justice. Enforcement would focus ontrue illegal immigrants (long-term illegal residents)rather than short-term unauthorized migrants whowould, in any event, enjoy greater opportunities forlegal access to South Africa.The Labour Market Commission proposals, under-

written by the Department of Labour, could safely beignored by the Department of Home A�airs (who areprimarily responsible for migration policy). The publi-cation of the Draft Green Paper, with so many pro-posals that cut across the thrust of current policy, is lesseasy to ignore. The adoption of the paperÕs proposals bythe government would have a major impact on SouthAfricaÕs migration regime and the region as a whole.

6. Conclusion

Clandestine migration to South Africa is nothingnew, a reality often suppressed inside the fortress

(Crush, 1997). However, the escalation in intra-regionalmigration in Southern Africa in the 1980s (with large-scale refugee movements from Mozambique) and the1990s (with escalating numbers of migrant workseekerscoming to South Africa from the region) is incontest-able. In the past, legal and administrative instruments ±including immigration legislation, bilateral accords, andtemporary work schemes ± were put in place in an at-tempt to regulate informal cross-border movements.These instruments and the practices they license andunderwrite remain deeply entrenched four years afterthe countryÕs ®rst democratic elections.

In 1994, the new South African government em-barked on a wide-ranging review and transformationof inherited apartheid policy. Immigration and migra-tion issues came very late to the table. Fundamentally,this was because the Minister of Home A�airs and hisbureaucrats and advisers initially saw little need toengage in the post-apartheid transformation process.Pushed and prodded by the ANC-controlled cabinetand by parliament, the DHA reluctantly implementedmore progressive policies (such as a 1996 amnesty forlong-time miners and SADC-country residents and theappointment of a Task Team on InternationalMigration).

Four reasons can be advanced, in conclusion, for theglacial rate of progress: ®rst, the kind of ethnic ex-clusivism that characterized the formation and devel-opment of the Inkatha Freedom Party, and the thinkingof its leader, was easily transferred to the national stage.Second, the aggrandisement of the immigration bu-reaucracy and the protection of its resource base is morepersuasively put within the context of a ``fortress'' dis-course. Third, the ANC is itself internally divided on theissue of migration and immigration, with signi®cantgrassroots and high-level political support for the in-herited fortress (tempered only by an uneasiness aboutits constitutionality and o�cial malpractice by thedrawbridge keepers). The ANC still has no declaredpolicy position on immigration (unlike the InkathaFreedom Party and the National Party who both ad-vocate ``round them up and throw them out'' policies)and is more than willing not to see this become anelection issue in 1999. Finally, there is the power of thefortress discourse. The accuracy or reliability of its factsand ®gures is irrelevant. Rather, the rhetorical con-struction of a new nation demands the redrawing andrede®nition of real and metaphorical boundaries of in-clusion and exclusion. Many who thought they belongedsuddenly ®nd themselves outside the fortress. It is abitter feeling for the new ``Other'' (Johnstone and Si-mbine, 1998, pp. 163±164).

We lived well in South Africa before. We weremixed together with Zulus, Xhosas, there were noproblems, there were no con¯icts.

10 J. Crush / Geoforum 30 (1999) 1±11

We voted (in South AfricaÕs 1994 elections) becausethey said our situation would improve but we arestill being arrested. We want to know why. Ourvotes have no value. We were ®ghting to have Man-dela in the government and we succeeded. Wefought to get the whites out of power so thingswould improve for us. But it looks like whites arestill in government.

References

B�ohning, W.R., 1996. Employing Foreign Workers, Geneva, Interna-

tional Labour Organization.

Brunk, M., 1996. Undocumented Migration to South Africa: More

Questions than Answers, Public Information Series No. 1, Idasa,

Cape Town.

Cassim, X., 1995. Illegal Immigration to South Africa. Africa Insight

25, 221±223.

Charney, C., 1995. Voices of a New Democracy: African Expectations

in the New South Africa, Centre for Policy Studies, Johannesburg.

Chimere-Dan, O., 1996. Migrants from Other Countries in South

Africa. South African Labour Bulletin 20 (2), 45±47.

Chirwa, W., 1995. Malawian Migrant Labour and the Politics of HIV/

Aids, 1985±1993. In: Crush, J., James, W. (Eds.), Crossing

boundaries: Mine migrancy in a democratic South Africa, Cape

Town and Ottawa: IDASA and IDRC, pp. 120±128.

Chirwa, W., 1997. A `No TEBA ... Forget TEBAÕ: The plight of

Malawian ex-migrant workers to South Africa 1988±1994. Inter-

national Migration Review 31 (3), 628±654.

Cooper, C., 1995. South Africa's Policy on Migration, Research Paper

for the National Labour Market Commission, Department of

Labour, Pretoria.

Crush, J., 1998a. Academics and Aliens: The Science of Xenophobia in

South Africa, Southern African Migration Project, QueenÕsUniversity, Kingston.

Crush, J., 1998b. Beyond control: Immigration and Human Rights in a

democratic South Africa, Cape Town: Idasa/SAMP.

Crush, J., 1997. A Bad Neighbour Policy? Migrant Labour and the

New South Africa. Southern Africa Report, 12(1).

Crush, J., James, W., 1995. Crossing Boundaries: Mine Migrancy in a

Democratic South Africa, Cape Town and Ottawa: IDASA and

IDRC.

Crush, J., Jeeves, A., Yudelman, D., 1991. South Africa's Labour

Empire: A History of Black Migrancy to the Gold Mines,

Westview Press, Boulder, CO.

de Kock, C., Schutte, C., Ehlers, D., 1994. Perceptions of current

sociopolitical issues in South Africa, Report for Human Sciences

Research Council, Pretoria.

De Jongh, M., 1994. Mozambican refugee resettlement: Survival

strategies of involuntary migrants in South Africa. Journal of

Refugee Studies 7, 220±238.

Department of Labour, 1996. Restructuring the South African labour

market: Report of the commission to investigate the development

of a comprehensive labour market policy, Pretoria: Government

Printer.

Department of Home A�airs, 1997. Draft green Paper on international

migration, Pretoria: Government Printer.

Desai, A., 1994. Illegal workers: Urgent issues. South African Labour

Bulletin 18 (1), 34±35.

de Vletter, F., 1998. Greener pastures: Mozambican miners and South

Africa. Migration Policy Series No 9, Southern African Migration

Project, Cape Town.

Dolan, C., 1995. Policy choices for the New South Africa. In: de

Villiers, R., Reitzes, M., (Eds.), Southern African Migration:

Domestic and Regional Policy Implications. Centre for Policy

Studies, Johannesburg, pp. 53±58.

Dolan, C., Nkuna, V., 1995. Mozambican refugees: A case Study of

the withholding of legal status on access to employment. Submis-

sion to the National Labour Market Commission.

Dolan, C., Reitzes, M., 1996. The insider story? Press coverage of

illegal immigrants and refugees, Research Report No. 48, Centre

for Policy Studies, Johannesburg.

Duncan, S., 1998. Bad law: Applying the aliens control act. In: Crush,

J. (Ed.), Beyond Control: Immigration and Human Rights in a

Democratic South Africa, Cape Town: Idasa/SAMP, pp. 149±159.

Jeeves, A., Crush, J., 1996. White farms, The state and agrarian

transformation in Southern Africa. Heinemann and London, New

York, James Currey.

Johnston, N., Simbine, C., 1998. The usual victims: The aliens control

act and the voices of Mozambicans. In: Crush, J. (Ed.), Beyond

Control: Immigration and Human Rights in a Democratic South

Africa. Cape Town: Idasa/SAMP, pp. 160±180.

Klaaren, J., 1998. Immigration and the South African constitution.

In: Crush, J. (Ed.), Beyond Control: Immigration and Human

Rights in a Democratic South Africa, Cape Town: Idasa/SAMP,

pp. 55±78.

Maharaj, B., Rajkumar, R., 1996. The `Alien InvasionÕ in South

Africa: Illegal Immigrants in Durban. Development Southern

Africa 14, 255±273.

McDonald, D., Gay, J., Zinyama, L., de Vletter, F., 1998. Challenging

xenophobia: Myths and realities about cross-border migration in

Southern Africa. Migration Policy Series No. 7, Southern African

Migration Project, Cape Town.

Minnaar, A., Pretorius, S., Wentzel, M., 1995. Who goes there? Illegals

in South Africa. Indicator SA 12, 33±40.

Minnaar, M., Hough, M., 1996. Who goes there? Perspectives on

Clandestine migration and illegal aliens in Southern Africa

Pretoria: Human Sciences Research Council.

Peberdy, S., 1998. Trading places: cross-border traders and the South

African informal sector. Migration Policy Series No. 8, Southern

African Migration Project, Cape Town.

Reitzes, M., 1998. Immigration and human rights in South Africa.

In: Crush, J., (Ed.), Beyond Control: Immigration and Human

Rights in a Democratic South Africa, Cape Town: Idasa/SAMP,

pp. 37±54.

Reitzes, M., 1995a. Divided on the `DemonÕ: Immigration Policy since

the Election, Centre for Policy Studies, Johannesburg.

Reitzes, M., 1995b. Debunking some of the myths. In: de Villiers, R.,

Reitzes, M. (Eds.), Southern African Migration: Domestic and

Regional Policy Implications, Centre for Policy Studies, Johannes-

burg, pp. 77±81.

Reitzes, M., 1995c. Transboundary migration to South Africa:

Challenges for human rights, Regional Development and Security.

Paper presented at South African Political Science Association

Conference, Stellenbosch.

Rogerson, C., 1998. International migration, Immigrant Entrepreneurs

and South AfricaÕs Small Enterprise Economy. Migration Policy

Series No. 3, Southern African Migration Project, Cape Town.

Sechaba Consultants, 1996. Riding the Tiger: Lesotho Miners and

Attitudes towards Permanent Residence in South Africa. Migra-

tion Policy Series No. 2, Southern African Migration Project, Cape

Town.

Southall, R., 1994. Foreign Workers in South Africa: Comrades or

Competitors? South African Labour Bulletin 18 (6), 68±73.

Toolo, H., Bethlehem, L., 1994. ``Migration to South Africa: Prob-

lems, Issues and Possible Approaches for Organised Labour''

Johannesburg: Naledi, Discussion Paper 11/94.

J. Crush / Geoforum 30 (1999) 1±11 11