Enhancing access to South African social security benefits by SADC citizens: The need to improve bilateral arrangements within a multilateral framework (Part II)
Authors Marius Olivier
Affiliations: Director: International Institute for Social Law and Policy; Extraordinary Professor: Faculty of Law, University of the North-West, Potchefstroom; Adjunct-Professor: Faculty of Law, University of Western Australia, Perth, Australia
Source: SADC Law Journal, The, 2012, Issue 2, p. 129 – 163
This contribution, the second of two parts, reflects on the need and availability of mechanisms to improve bilateral arrangements within a multilateral framework in order, amongst other things, to enhance access to South African social security benefits by SADC migrants. It discusses the impeding impact of the operation of the current immigration law and policy framework, as migrant workers whose employment or right to reside in South Africa has terminated may not have sufficient opportunity to finalise social security arrangements before departure. In addition, the widely reported xenophobic conduct vis-\xc3\xa0-vis and treatment of non-citizens further hampers access to social security benefits. The current labour agreements between South Africa and certain SADC countries, as is the case with more recent Memoranda of Understanding, are inadequate for various reasons, and do not qualify as true bilateral social security agreements. Despite guidance provided by the AU Migration Policy and Social Protection Frameworks and related documents, SADC regional social security and migration policy frameworks are still absent. The development of an integrated vision and harmonised policy framework at SADC level with regard to migration needs to be supported at the country level by a coherent and relevant migration policy. While some provision is made for the protection, in social security terms, of the position of non-citizens, SADC instruments invariably qualify the protection available; importantly, such protection is not supported by nationality discrimination and freedom of movement provisions. International instruments provide an important framework for a range of applicable principles for the treatment of non-citizens in social security, the protection of their accrued rights and portability of benefits, and the entering into of bilateral agreements. However, while applicable UN instruments have been widely ratified by most SADC countries, this is not so as regards ILO social-security-related Conventions, with particular reference to ILO migration Conventions. There is an evident need for the adoption of suitable bilateral social security agreements to better regulate entitlement to South African social security benefits and related social security coordination provisions. This flows from the weak provision made in this regard in the South African legal system and the legal systems of other SADC countries. Flexible approaches should be adopted by, for example, initially focusing on areas of concern which are common to South Africa and its neighbouring countries, and which are in need of urgent action (such as access to occupational injuries and disease benefits). It is argued that the bilateral regime should be undergirded by a multilateral framework which contains generally applicable standards and displays a phased and incremental approach in relation to (a) benefits provided for; (b) categories of persons covered; (c) the introduction of the principle of aggregation/totalisation of insurance periods/contributions; and (d) countries included in the agreement.