Abstract

Many foreign nationals arrive in South Africa because they are fleeing their countries of origin based on a well-founded fear of persecution caused by conflicts affecting their countries. Having arrived in South Africa these foreign nationals are required to apply for asylum in terms of the Refugees Act. Problems arise where during the process their application for asylum is rejected, or their refugee status is withdrawn with the result that they become undocumented migrants. Because the Immigration Act prohibits foreign nationals from being employed in South Africa without a work permit or refugee status, undocumented migrants in the country are unable to sustain themselves by finding lawful employment. This article explores the employment rights of such undocumented migrants in light of the courts’ decisions in Watchenuka and Discovery Health. These cases respectively find that it is unconstitutional to bar foreign nationals from seeking employment, and that undocumented migrants are employees and should therefore be afforded the same employment rights and legislative protections against dismissal as other lawful employees. It is concluded that while the position of undocumented foreign migrants remains precarious, the courts’ findings in these two cases provide some reprieve to foreign nationals.