Limitations on the rights of migrant workers : is a compliant and consistent approach being followed?

Abstract

Migration has become a global phenomenon and South Africa, like many other countries, is a recipient of migrant workers. Migrant workers can be classified under five categories: permanent residents, refugees, asylum seekers, temporary residents, and undocumented migrants. This article focuses on documented migrants and their right to engage in work. Integral to the right to work is the right to choose one's trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. This ties in with South Africa's obligation to protect employment opportunities for citizens. However, South Africa has immigration laws in place that afford substantial rights to certain categories of migrants. Furthermore, as a member of the UN and International Labour Organisation (ILO), South Africa has certain international law obligations. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.