International Journal of Social Security and Workers ...ceebi.curtin.edu.au/local/docs/IJSSWC_V3_1_2011.pdf · INTERNATIONAL JOURNAL OF SOCIAL SECURITY ... and expert opinion on contemporary

International Journal of Social S

ecurity and Workers C

ompensation Vol. 3 No. 1, 2011

INTERNATIONAL JOURNAL OF SOCIAL SECURITY AND

WORKERS COMPENSATION

VOLUME 3, NO. 1, 2011

INTERNATIONAL JOURNAL OF SOCIAL SECURITY AND WORKERS COMPENSATION

ISSN: 1836-9022

EDITORS IN CHIEF Professor Robert Guthrie – Adjunct Professor of Workers Compensation and Workplace Laws, Curtin

University, Western Australia

Professor Marius Olivier – Adjunct Professor: Faculty of Law, University of Western Australia (Australia); Extraordinary Professor: Faculty of Law, University of Northwest, Potchefstroom (South Africa); Director, International Institute for Social Law and Policy (Australia).

Associate Professor Marina Ciccarelli – School of Occupational Therapy and Social Work, Curtin University, Western Australia.

EDITORIAL BOARD Dr Kevin Purse – Senior Research Fellow University of South Australia, South Australia

Dr Frances Meredith – Adjunct Research Fellow, Flinders University, South Australia

Ms Su Lloyd – Adjunct Professor, Murdoch University, Western Australia;

Professor Terry Carney – Faculty of Law, University of Sydney, Australia; Barrister

Professor Lorna Rosenwax – Head, School Occupational Therapy and Social Work, Curtin University, Western Australia

Professor Katherine Lippel – Research Chair, Occupational Health and Safety Law, University of Ottawa, Canada

Dr Rick Victor –Executive Director, Workers Compensation Research Institute, Cambridge, MA, USA

Professor Richard Johnstone – Griffith University, Queensland, Australia

ADVISORY BOARD OF IJSSWC Dr Cameron Mustard – President and Senior Scientist of the Institute for Work and Health, Toronto,

Canada

Dr Gregory Krohm – Executive Officer, International Association of Industrial Accident Boards and Commissions

Mr Alan Clayton – Lawyer and Workers Compensation Consultant, Bracton Consultancy, Australia

Professor Robert Holzmann – RH Institute for Economic Policy Analyses, Vienna, Austria; Senior Advisor (consultant) to the World Bank

Professor Mukul Asher – Economist; School, of Public Policy, National University of Singapore

Professor David Stanton – Australian National University, Canberra, Australia

Judge Steve Adler – Past President, Israel Labour Court

Professor Edwin Kaseke – Chair of Social Work, School of Human and Community Development, University of Witwatersrand, South Africa.

INTERNATIONAL JOURNAL OF SOCIAL SECURITY AND WORKERS COMPENSATION

TABLE OF CONTENTS

Editorial Marina Ciccarelli, Marius Olivier and Rob Guthrie iv

Coverage of Work-related Problems by Workers’ Compensation in General Practice Alex Collie, Ying Pan, Helena Britt and Joan Henderson 1

Mind the Gaps Workers’ Compensation Coverage for Commuting Injuries in Australia Genevieve Grant and Diana M. Bowman 15

Compensation of Hand-Arm Vibration Syndrome in Canada Aaron Thompson, Alice Turcot, Sami Youakim and Ron House 21

Social Security Adjudication in the Light of International Standards The Need for Reform in Southern Africa Marius Olivier 29

The Human Rights of (Irregular) Migrants (Part 2) An International, Regional and South African Perspective Ockert Dupper 55

v

EDITORIAL This third edition of the International Journal of Social Security and Workers Compensation presents international empirical research and expert opinion on contemporary issues related to policy, legislation, and services within the social security and workers’ compensation systems. The first three papers in this edition of the Journal discuss a variety of factors in workers’ compensation systems in Australia and Canada that result in inconsistencies in compensation claims, coverage or payment for injured workers. The challenges related to the provision and adjudication of social security payments, from a human rights and equity perspective, for irregular workers and migrants in Southern Africa are discussed in the last two papers.

In their contribution, Alex Collie, Ying Pan, Helena Britt and Joan Henderson investigate the nature of occupational health conditions managed by general practitioners that are claimed via workers’ compensation schemes compared to those that are unclaimed. They identify that physical health problems such as musculoskeletal conditions, and in particular back complaints, are most often associated with a workers’ compensation claim; whereas psychological impairments such as stress and depression are less often managed by general practitioners as part of a workers’ compensation claim. Personal, system and regional factors that may explain why some workers do not lodge a workers’ compensation claim for their work-related injuries are discussed.

Inconsistencies in workers’ compensation coverage for Australian workers who sustain an injury during the commute between home and the workplace are the focus of the paper by Genevieve Grant and Diana Bowman. The ‘gaps’ they describe include incomplete data of the magnitude of occupational commuting injuries; differences in workers’ compensation provisions and exclusions across Australian jurisdictions; and a disparity in employer liability for commuting injuries against the public health evidence around the effects of work-related fatigue. Implications for workers are discussed along with a call for reform of the workers’ compensation coverage for commuting injuries.

Aaron Thompson and his colleagues Alice Turcot, Sami Youakim and Ron House explore the gaps in existing legislation for hand-arm vibrations syndrome across the Canadian jurisdictions that may result in under-reporting and insufficient compensation for this occupational injury. They describe inconsistencies between the compensation boards of the various provinces and territories in the methods for assessment for entitlement and assigning an impairment rating for this condition, resulting in disproportional rates of compensation across jurisdictions.

Professor Marius Olivier’s contribution highlights the need for reform of the fragmented social security adjudication systems in countries that comprise the Southern African Development Community. He discusses the current context and describes the nature of reforms required based on relevant international standards and principles grounded in a human rights perspective. He concludes his paper with recommendations for the introduction of a standardised adjudication system and some strategies for overcoming political, legal and financial challenges to its achievement.

In the second part of his two-part contribution, Professor Ockert Dupper further explores the issue of social security entitlements for irregular migrants in South Africa. Political and economic factors that result in the illegal border crossings of men, women and children from surrounding countries into South Africa are described. The exclusion of illegal migrants from access to social security, social insurance, workers’ compensation coverage, emergency health care, and education for children of irregular migrants is discussed from a point of law and a social justice perspective. Dupper posits that there is a movement towards the provision of basic human rights entitlements, and not just the security issues associated with the management of irregular migrants in South Africa.

INTERNATIONAL JOURNAL OF SOCIAL SECURITY AND WORKERS COMPENSATION VOL 3, NO 1, 2011

vi

This peer-reviewed electronic journal is designed to be of service both to the academic community and to practitioners in the fields of social security and workers’ compensation. It seeks to publish research articles, notes and comments. It therefore welcomes scientific contributions of an analytical, theoretical or applied nature from the academic community and practitioners in any relevant discipline. The journal, in particular, welcomes contributions on innovative approaches in the areas of social security and workers compensation. Contributions dealing with issues of policy and reform are also encouraged. Double-blind peer reviewing is undertaken by members of a distinguished editorial board and other recognised subject experts. The journal is supported by an advisory board consisting of eminent scholars and specialists from around the world. Further information on the Journal, including submission guidelines for authors, is available on the Journal’s website, accessible at http://www.business.curtin.edu.au/business/research/journals/international-journal-of-social-security-and-workers-compensation.

The Journal is published online once per year. Contributions to the International Journal of Social Security can be sent to any of the three editors in chief: [email protected]; [email protected] or [email protected]

Marina Ciccarelli Marius Olivier Rob Guthrie June 2012

COVERAGE OF WORK-RELATED PROBLEMS BY WORKERS’ COMPENSATION IN GENERAL PRACTICE

ALEX COLLIE, YING PAN, HELENA BRITT AND JOAN HENDERSON*

ABSTRACT Background: General Practitioners (GPs) play an important role in the management of work-related injury and illness. Relatively little is known about the coverage of GP treated occupational health conditions through workers’ compensation schemes. Objectives: To compare the proportion and nature of GP treated occupational health problems in Australia claimed through workers’ compensation with those not claimed. Methods: Analysis of all work-related GP encounters among injured workers from the prospective BEACH (Bettering the Evaluation and Care of Health) study dataset between April 2004 and March 2009. Results: Of all work-related GP encounters 77.4% were claimed through workers’ compensation. Problems most commonly managed at claimed encounters were musculoskeletal, followed by skin, psychological and general/unspecified problems. Musculoskeletal problems were the most common work related problems managed at unclaimed encounters; however, they were managed significantly less often. In contrast, psychological, general, circulatory, respiratory, social and ear related problems were managed significantly more often at unclaimed encounters. Encounters occurring in major cities and inner regional areas were significantly more likely to be claimed through workers’ compensation than those in outer regional and remote regions. Conclusions: The type of work-related health problems managed in GP encounters claimed through workers’ compensation is different to those not claimed. Unclaimed encounters are more likely to involve psychological and social problems than physical problems. Work-related health problems managed in rural and remote regions are less likely to be claimed. The decision to make a compensation claim may be influenced by factors including the nature of the condition, its severity, jurisdictional eligibility, and the worker’s or their GP’s awareness of entitlements.

I. BACKGROUND Work plays an important role in our health and social well-being. There is now substantial evidence that employment is associated with both general health status1 and facilitates social inclusion.2,3 In Australia, as in the United States and Canada, payment for healthcare and income replacement for work-related injuries and illnesses is regulated by a range of state and federal workers’ compensation authorities.4 Provision of a medical certificate is one of the pre-requisites for acceptance of a workers’ compensation claim. Only a small proportion of work-related injuries are of sufficient severity to require hospitalisation5 and thus GPs play a central role in the

* Alex Collie, Institute for Safety Compensation and Recovery Research (ISCRR), Monash University, Department of

Epidemiology and Preventive Medicine, Faculty of Medicine Nursing and Health Science, Monash University. Ying Pan, Family Medicine Research Centre, School of Public Health, The University of Sydney. Helena Britt, Family Medicine Research Centre, School of Public Health, The University of Sydney. Joan Henderson, Family Medicine Research Centre, School of Public Health, The University of Sydney. 1 Richard Wilkinson and Michael Marmot (eds), Social Determinants of Health: The Solid Facts (World Health

Organisation, 2nd ed, 2003). 2 Gordon Waddell and A Kim Burton, Is Work Good for Your Health and Well-Being? (Stationery Office, 2006). 3 Christina Pantazis, David Gordon and Ruth Levitas (eds): Poverty and Social Exclusion in Britain: The Millennium

Survey (Policy Press, 2006). 4 Comparative Performance Monitoring Report: Comparison of Occupational Health and Safety and Workers’

Compensation Schemes in Australia and New Zealand (Commonwealth of Australia (Safe Work Australia) 11th ed, 2009).

5 Allard E Dembe et al, ‘Inpatient Hospital Care for Work-Related Injuries and Illnesses (2003) 44 American Journal of Industrial Medicine 331.


2

early and ongoing treatment and the co-ordination of care for those with work-related injury and illness.

The most common work-related conditions encountered by GPs are musculoskeletal in nature. For example, Driscoll and Hendrie reported that in the period 1998 to 2000 almost three quarters of work-related GP encounters for injury involved treatment for a musculoskeletal condition. In contrast, only 24% to 33% of hospital emergency department admissions for occupational injury were for musculoskeletal injury. Musculoskeletal disease was also the most common work-related disease, followed by psychological and skin diseases.6

Previous studies indicate that a substantial proportion of work-related injury and disease appearing on health datasets do not arise on workers’ compensation datasets.7,8 In these cases, compensation for medical care is provided by alternative public or private sources. This may reflect regulatory and legislative limits in the types of conditions and treatments covered by workers’ compensation schemes. For example, in the state of Victoria in Australia the employer’s liability is limited to the first 10 days lost from work that the injured worker misses and also the first $582 in medical expenses (as at August 2010). These and other eligibility conditions differ substantially between workers’ compensation jurisdictions.9 Alternatively, it may reflect a lack of propensity to claim workers’ compensation benefits under certain circumstances; for example, where the worker is unaware of their right to claim workers’ compensation benefits, where the worker is concerned about their job security or the perception of their injury/illness at work; or where the treating medical practitioner considers it unlikely that the encounter will be covered by workers’ compensation.

Relatively little is known about the coverage of GP treated occupational injuries and illnesses by workers’ compensation schemes.10 This study sought to compare the proportion and nature of GP treated occupational health problems in Australia that are claimed through workers’ compensation with those not claimed. A second aim was to determine the coverage of GP treated occupational health conditions by workers’ compensation schemes between jurisdictions.

II. METHODS

A. The database This is an analysis of data from the BEACH (Bettering the Evaluation and Care of Health) program; a continuous national study of general practice clinical activity in Australia, which began in April 1998. Its methods have been described in detail elsewhere.11 In summary, each GP, in an ever-changing random sample of approximately 1000 practising GPs per year across Australia, completes details of 100 consecutive GP-patient encounters on standardised paper recording forms. The encounter may involve management of new health problem(s) and/or a follow up for previously managed condition(s).

The provided information recorded includes age, sex, up to three patient reported ‘‘reasons for encounter’’ (RFEs), and up to four problems managed at the encounter (recorded by GP as diagnoses or as problem descriptions). The RFEs are the patient’s reasons for presenting, in contrast with the GPs ‘‘problems managed’’ that describe his/her view of the problems managed, at the highest diagnostic level possible with the evidence available at the time. RFEs and problems managed are classified according to the International Classification of Primary Care, version 2 (ICPC-2).12

6 Tim R Driscoll and A Leigh Hendrie, ‘Surveillance of Work-Related Disorders in Australia Using General

Practitioner Data’ (2002) 26 Australian and New Zealand Journal of Public Health 346. 7 T Driscoll et al, ‘Coverage of Work Related Fatalities in Australia by Compensation and Occupational Health and

Safety Agencies’ (2003) 60 Occupational and Environmental Medicine 195. 8 Soufiane Boufous and Ann Williamson, ‘Work-Related Injury in NSW Hospitalisation and Workers' Compensation

Datasets: A Comparative Analysis’ (2003) 27 Australian and New Zeland Journal of Public Health 352. 9 Comparative Performance Monitoring Report, above n 4, 44. 10 Janice Charles, Ying Pan and Helena Britt, ‘Work Related Encounters in General Practice’ (2006) 35 Australian

Family Physician 938. 11 Helena Britt et al, ‘General Practice Activity in Australia, 2008-09’ (Report, General Practice Series No 25,

Australian Institute of Health and Welfare, 2009). 12 ICPC-2 International Classification of Primary Care (Oxford University Press, 2nd ed, 1998).

WORKERS’ COMPENSATION IN GENERAL PRACTICE

3

GPs indicate whether, in their opinion, each of the recorded health problems is work-related and record whether the encounter is being claimed through workers’ compensation. Using these data, the BEACH database was searched for encounters involving one or more work-related problems. All work-related problems described as a ‘health assessment’, ‘check-up’ or ‘immunisation / vaccination’ were then removed as these are not claimable through workers’ compensation in any state. Encounters that did not include any other work-related problems were therefore eliminated from the study group. The remaining encounters were divided into: (1) work-related encounters to be claimed through workers’ compensation; and (2) other work-related encounters. BEACH data collected during the 60 month period from April 2004 to March 2009 were analysed.

B. Statistical methods Data were analysed using SAS version 9.13 (SAS Institute, Cary, NC, USA), with the GP encounter being the primary unit of analysis. This was a cluster-based sample with the cluster around the GP. As such the 95% confidence intervals were adjusted and reported for the single stage clustered study design using SAS. Percentages are used to describe the distribution where events can only occur once in a consultation; for example, patient age, gender, state or territory. Work-related problems were analysed at two levels. First, health problems were described at the ICPC 2 chapter level. ICPC chapters correspond approximately to the main body systems, with additional chapters for social and psychological problems. Second, problems were analysed at the individual level using ICPC 2 rubric labels to determine the 10 most common health problems in both groups. For both analyses the number, rate per 100 encounters and the percentage of health problems managed in each group are described. As more than one work related problem can be managed at a single encounter, chi square statistics are not appropriate as they do not allow for the cluster design of the study. Significance of differences was determined by non-overlapping confidence intervals. Chronic health problems were defined according to O’Halloran et al.13

III. RESULTS There were 12,580 work-related GP encounters during the five year study period, representing 2.6% (95% CI: 2.5-2.7) of the 486,400 total encounters recorded in the BEACH database during this period. Simple extrapolation of this result to the average 105 million GP encounters paid through the Australian public health system (Medicare) per annum, plus a further (estimated) 2.5 million encounters paid through other sources (including workers’ compensation),14 suggests that over the study period there were nationally about 2.7 million GP encounters per annum for work-related health problems.

There were 9,743 (77.4%) work-related GP encounters claimed through workers’ compensation at which 10,115 work related problems were managed. The remaining 2,837 (22.6%) encounters involving 2,952 work-related problems, were not claimed. Within both groups the majority of patients were male, with more than 80% of patients aged between 25 and 64 years. Most GP encounters were recorded in the most populous states (Victoria, New South Wales, Queensland) with a smaller number in less populous states and the territories (Table 1). The work-related problems at claimed encounters were less likely to be new problems to the patient (20.1%) than those managed at unclaimed encounters (35.9%). In contrast, chronic problems were almost equivalent between claimed (23.8%) and unclaimed encounters (26.4%)

13 Julie O’Halloran, Graeme C Miller and Helena Britt, ‘Defining Chronic Conditions for Primary Care with ICPC-2’

(2004) 21 Family Practice, 38. 14 Helena Britt et al, above n 11.


4

Table 1. Work-related general practice encounters

Claimed on workers'

compensation Not claimed on workers’

compensation

Number Per cent of

encounters (N=9743) Number Per cent of

encounters (N=2837) General practitioners 3325 1582 Encounters (row %) 9743 77.4 (76.2-78.7) 2837 22.6 (21.3-23.8) Gender Male patients 5630 58.3 (57.1-59.5) 1589 56.6 (54.5-58.6) Female patients 4030 41.7 (40.5-42.9) 1220 43.4 (41.4-45.5) Patient Age Group 5-14 years 1 0.0 (0.0-0.0) 0 0.0 (0.0-0.0) 15-24 years 890 9.2 (8.6-9.9) 273 9.7 (8.4-11.0) 25-44 years 3950 40.9 (39.8-42.0) 1131 40.3 (38.4-42.1) 45-64 years 4593 47.6 (46.4-48.7) 1251 44.5 (42.6-46.5) 65-74 years 178 1.8 (1.6-2.1) 113 4.0(3.3-4.8) 75+ years 43 0.4 (0.3-0.6) 42 1.5 (1.0-2.0) State / Territory ACT 236 2.5 (1.8-3.2) 58 2.1 (1.3-2.9) NSW 3651 38.3 (36.2-40.5) 876 31.6 (28.2-35.1) VIC 2429 25.5 (23.4-27.6) 711 25.7 (22.6-28.7) QLD 1112 11.7 (10.3-13.0) 544 19.7 (17.1-22.2) SA 880 9.2 (7.9-10.6) 222 8.0 (6.1-10.0) WA 767 8.1 (6.9-9.2) 222 8.0 (6.2-9.9) TAS 278 2.9 (2.2-3.7) 62 2.2 (1.5-3.0) NT

171

1.8 (1.1-2.5)

73

2.6 (1.5-3.8)

Per cent of problems managed (N=10115)

Per cent of problems managed

(N=2952) Problems Managed New problem 2031 20.1 (19.1-21.1) 1059 35.9 (33.6-38.1) Chronic problem 2412 23.8 (22.9-24.8) 780 26.4 (24.4-28.4)

C. Problems managed The work-related health problems most commonly managed at claimed GP encounters were musculoskeletal (managed at a rate of 69.0 per 100 work related encounters); followed by skin, psychological and general/unspecified problems. Combined, these four ICPC categories accounted for 91.8% of all work-related problems managed. The remaining 8.2% of problems were distributed across 13 categories (Table 2).

Tabl

e 2.

Pro

blem

s m

anag

ed in

gen

eral

pra

ctic

e en

coun

ters

cla

imed

on

wor

kers

’ com

pens

atio

n an

d no

t cla

imed

.

C

laim

ed o

n w

orke

rs’ c

ompe

nsat

ion

N

ot c

laim

ed o

n w

orke

rs’

com

pens

atio

n

Per c

ent

uncl

aim

ed

enco

unte

rs^

Prob

lem

Man

aged

N

umbe

r of

enco

unte

rs

Rat

e pe

r 100

en

coun

ters

Num

ber o

f en

coun

ters

R

ate

per 1

00

enco

unte

rs

M

uscu

losk

elet

al

6723

69

.0 (6

7.8-

70.2

)

1316

46

.4 (4

3.9-

48.9

)

16.4

S

kin

1188

12

.2 (1

1.4-

13.0

)

287

10.1

(8.9

-11.

4)

19

.5

Psy

chol

ogic

al

804

8.3

(7.4

-9.1

)

616

21.7

(19.

2-24

.2)

43

.4

Gen

eral

& u

nspe

cifie

d 57

2 5.

9 (5

.3-6

.4)

30

0 10

.6 (9

.2-1

2.0)

34.4

N

euro

logi

cal

379

3.9

(3.5

-4.3

)

95

3.3

(2.7

-4.0

)

20.0

E

ye

138

1.4

(1.1

-1.7

)

58

2.0

(1.5

-2.6

)

29.6

D

iges

tive

90

0.9

(0.7

-1.1

)

44

1.6

(1.1

-2.0

)

32.8

C

ircul

ator

y 73

0.

7 (0

.6-0

.9)

48

1.

7 (1

.2-2

.2)

39

.7

Res

pira

tory

40

0.

4 (0

.3-0

.5)

78

2.

7 (2

.0-3

.5)

66

.1

End

ocrin

e &

met

abol

ic

27

0.3

(0.2

-0.4

)

24

0.8

(0.1

-1.6

)

47.1

S

ocia

l 27

0.

3 (0

.2-0

.4)

33

1.

2 (0

.8-1

.6)

55

.0

Ear

23

0.

2 (0

.1-0

.3)

33

1.

2 (0

.8-1

.6)

58

.9

Uro

logy

13

0.

1 (0

.1-0

.2)

4

0.1

(0.0

-0.3

)

23.5

B

lood

6

0.1

(0.0

-0.1

)

1 0.

0 (0

.0-0

.0)

14

.3

Fem

ale

geni

tal s

yste

m

5 0.

1 (0

.0-0

.1)

8

0.3

(0.1

-0.5

)

61.5

P

regn

ancy

& fa

mily

pla

nnin

g 4

0.0

(0.0

-0.1

)

3 0.

1 (0

.0-0

.2)

42

.9

Mal

e ge

nita

l sys

tem

3

0.0

(0.0

-0.1

)

4 0.

1 (0

.0-0

.3)

57

.1

Tota

l 10

115

103.

8 (1

03.3

-104

.3)

29

52

104.

1 (1

03.0

-105

.1)

22

.6

N

ote:

95%

con

fiden

ce in

terv

als

are

pres

ente

d fo

r rat

es. ^

Per

cent

age

of w

ork-

rela

ted

prob

lem

s m

anag

ed a

t enc

ount

ers

not c

laim

ed u

nder

a w

orke

rs’

com

pens

atio

n sc

hem

e

Tabl

e 3.

Top

ten

wor

k-re

late

d pr

oble

ms

in g

ener

al p

ract

ice

enco

unte

rs c

laim

ed o

n w

orke

rs’ c

ompe

nsat

ion

and

not c

laim

ed

R

ank

Cla

imed

on

wor

kers

’ com

pens

atio

n

Not

cla

imed

on

wor

kers

’ com

pens

atio

n

Pr

oble

m

Num

ber

Rat

e pe

r 100

en

coun

ters

Prob

lem

N

umbe

r R

ate

per 1

00

enco

unte

rs

1 B

ack

com

plai

nt

1708

17

.5 (1

6.6-

18.4

)

Bac

k co

mpl

aint

36

3 12

.8 (1

1.4-

14.1

) 2

Spr

ain/

Stra

in

1245

12

.8 (1

1.9-

13.6

)

Acu

te s

tress

reac

tion

202

7.1

(5.9

-8.3

) 3

Inju

ry m

uscu

losk

elet

al N

OS

10

23

10.5

(9.7

-11.

3)

D

epre

ssio

n 18

2 6.

4 (5

.2-7

.6)

4 In

jury

ski

n, o

ther

44

3 4.

5 (4

.1-5

.0)

S

prai

n/S

train

17

7 6.

2 (5

.1-7

.4)

5 Fr

actu

re

404

4.1

(3.7

-4.6

)

Inju

ry m

uscu

losk

elet

al N

OS

14

3 5.

0 (4

.2-5

.9)

6 La

cera

tion

/ cut

36

2 3.

7 (3

.3-4

.1)

A

nxie

ty

132

4.7

(3.7

-5.6

) 7

Dep

ress

ion

357

3.7

(3.2

-4.1

)

Frac

ture

75

2.

6 (2

.0-3

.3)

8 S

houl

der s

yndr

ome

286

2.9

(2.6

-3.3

)

Ost

eoar

thrit

is

66

2.3

(1.8

-2.9

) 9

Bur

sitis

/tend

oniti

s/sy

novi

tis N

OS

27

4 2.

8 (2

.5-3

.2)

B

ursi

tis/te

ndon

itis/

syno

vitis

NO

S

62

2.2

(1.6

-2.7

) 10

A

cute

inte

rnal

dam

age

knee

24

8 2.

5 (2

.2-2

.9)

In

jury

ski

n, o

ther

60

2.

1 (1

.6-2

.7)

To

tal

6350

65

.2

To

tal

1462

51

.5

Not

e: 9

5% c

onfid

ence

inte

rval

s ar

e pr

esen

ted

for r

ates

. NO

S =

Not

els

ewhe

re s

peci

fied;

* =

per

cent

age

of to

tal p

robl

ems

man

aged


7

While musculoskeletal problems were the most common work-related problems managed at unclaimed encounters, they were managed significantly less often (46.4 per 100 of these encounters). The term ‘managed’ is used here in the broadest sense to mean dealt with, and may include actions of GPs including but not limited to assessment, review, prescribe, counsel, test and refer. Skin problems were also marginally less common at unclaimed encounters (10.1 per 100 encounters compared with 12.2 among claimed encounters). In contrast, some problems were managed more often at unclaimed encounters, including: psychological (21.7 vs.8.3 per 100 encounters), general and unspecified (10.6 vs. 5.9), circulatory (1.7 vs. 0.7), respiratory (2.7 vs. 0.4), endocrine and metabolic (0.8 vs. 0.3), social (1.2 vs. 0.3) and ear (1.2 vs. 0.2 per 100 encounters) related problems.

1. Musculoskeletal problems

The rate of musculoskeletal health problems managed was significantly greater at claimed encounters than unclaimed encounters (Table 2). Of the more frequent morbidity groups, the proportion of unclaimed GP encounters was lowest (at 16.4%) where musculoskeletal problems were managed. Seven of the 10 most common health problems managed in the claimed GP encounters, were classified under the broader category of musculoskeletal health problems. While back complaints was the most common problem managed for injured workers with both claimed and unclaimed health problems, the rate per 100 encounters was substantially lower during GP encounters not claimed through workers’ compensation (at 12.8 vs. 17.5) (Table 3).

2. Psychological problems

Work related psychological problems were almost three times more likely to be managed in the unclaimed GP encounters than in claimed encounters. There were almost equal numbers of psychological problems managed in the unclaimed encounters (43.4%) as in the larger group of claimed encounters. Among those encounters not claimed through workers’ compensation, the psychological problems of acute stress, depression and anxiety were the second, third and sixth most commonly managed problems, respectively. In contrast, at claimed GP encounters depression was the only psychological problem to appear in the 10 work-related problems managed. Even so, the management rate of depression was significantly higher at unclaimed GP encounters (6.4 vs. 3.7 per 100 encounters).

3. Respiratory problems

Nearly two-thirds of work-related respiratory problems were not claimed through workers’ compensation (Table 2), reflecting the fact that respiratory problems were managed nearly seven times more often at the unclaimed encounters than in the claimed encounters. These differences were significant.

D. Most common work-related problems The 10 most commonly managed work-related problems at claimed and unclaimed GP encounters are shown in Table 3. Back complaints were managed most often in both groups, but were significantly more often managed at claimed encounters, as were sprains/strains, non-specific musculoskeletal injury, skin injury and fracture; all of which occurred in the top 10 most common injures for both groups. In contrast, depression was managed significantly less often during encounters claimed through workers’ compensation. Further, acute stress reaction and anxiety appeared in the top ten problems managed in unclaimed encounters but not in the top 10 problems managed at claimed encounters.

E. Workers’ compensation coverage by State, Territory and geographic region The percentage (and 95% confidence intervals) of unclaimed work-related GP encounters by State, Territory and geographic region is displayed in Figure 1. Queensland and the Northern Territory had the highest proportion unclaimed encounters, at 33% and 30%, respectively. The rate of unclaimed encounters in Queensland was significantly greater than that observed in all


8

other states and territories, with the exception of the Northern Territory. While the Northern Territory rate of unclaimed encounters was high, wide confidence intervals generated by the small sample size rendered the difference not statistically significant.

States with the highest coverage of claimed GP encounters were Tasmania (18% not claimed), New South Wales (19%) with the remaining states ranging between 20% and 23% unclaimed work-related GP encounters.

Work-related GP encounters occurring in major cities and inner regional areas were significantly more likely to be claimed through workers’ compensation than those in outer regional and very remote regions. Thirty-nine per cent of GP encounters in very remote regions were not claimed through workers’ compensation, compared with 23% in major cities and 20% in inner regional areas. Figure 1. Percentage (95% CIs) of GP encounters not claimed on workers’ compensation by state or territory (Figure 1A) and geographical region (Figure 1b).

Figure 1. Percentage (95% CIs) of GP encounters not claimed on workers’ compensation by state or territory (Figure 1A) and geographical region (Figure 1b).

Percent of encounters not claimed, by state/territory

0

10

20

30

40

50

60

ACT NSW VIC QLD SA WA TAS NT

Per

cen

t

Percent of encounters not claimed, by geographic region

0.0

10.0

20.0

30.0

40.0

50.0

60.0

Major Cities Inner Regional Outer Regional Remote Very remote

Per

cen

t


9

IV. DISCUSSION A substantial proportion (22.6%) of work-related health problems managed by GPs is not claimed through workers’ compensation, and thus would not appear on workers’ compensation datasets. This is highly consistent with an earlier report of Australian GP data using the BEACH dataset, where 23% of work-related problems were not claimed through workers’ compensation;15 and with prior investigations of hospitalised work-related injury that identified significant discrepancies between workers’ compensation and hospital separation data.16 Similarly, only 57% of work-related fatalities were included in workers’ compensation datasets.17 Self-report data, collected via the Australian Bureau of Statistics (ABS) work-related injuries survey (WRIS)18 showed that 62% of surveyed Australians with work-related injury did not apply for workers’ compensation, and that this rate was higher among women (67%) than among men (59%).

Work-related encounters not claimed through workers’ compensation may be less severe than problems managed at claimed encounters, and thus less likely to meet the regulatory severity thresholds for claim acceptance applied in most workers’ compensation jurisdictions; e.g., minimum time away from work, minimum medical expense. This is supported by data from the WRIS, in which ‘minor injury only/not considered necessary to claim’ was given as the reason for not applying for workers’ compensation by 54% of employees with work-related injuries.19 However, the current findings suggest that the differences between claimed and unclaimed encounters may also relate to the type of problem managed, in addition to severity. Specifically, GP encounters claimed through workers’ compensation are more likely to involve physically evident conditions such as musculoskeletal injury, and less likely to involve non-physical conditions such as psychological and social problems, than unclaimed encounters.

There are a number of reasons why those with work-related conditions may not apply for workers’ compensation.20 Workers may be less willing to claim benefits for psychological and social conditions than for physical conditions; for example, due to the greater potential for a negative reaction in the workplace. Workers and treating medical practitioners may also be less aware of their ability to claim workers’ compensation benefits for psychological and social conditions than for physical conditions such as back injury. The worker or their treating GP may consider the worker to be ineligible for workers’ compensation. Finally, workers may be less able to claim benefits for psychological and social conditions than for physical conditions, as some Australian jurisdictions exclude or limit the availability of workers’ compensation benefits for psychological injury.21 For example, a worker experiencing depression may continue to work with that condition and thus not meet the regulatory criteria for acceptance of a workers’ compensation claim. It may also be more difficult to demonstrate that work is the cause of a psychological or social condition than it is of a physical condition.

These explanations are supported by data from the 2005-06 WRIS, where nine per cent of those surveyed failed to apply for workers’ compensation because they did not think they were eligible;22 while a further eight per cent listed a potential negative impact on current or future employment as the reason for not applying. Among those whose injuries resulted in time off work, these figures were greater at 18% and 11%, respectively. Finally, five per cent reported that they were not covered by or were not aware of workers’ compensation.23 Other studies have identified certain cohorts of workers who are less likely to apply for workers’ compensation, including small business owners, contractors and sub-contractors, self-employed, temporary and casual workers; i.e., the precariously employed.24,25

15 Janice Charles, Ying Pan and Helena Britt, above n 10, 938, 938. 16 Helena Britt et al, above n 11. 17 T Driscoll et al, above n 7, 199. 18 Australian Bureau of Statistics, Work-Related Injuries, Australia 2005-06 (2006). 19 Ibid, 8 20 Australian Bureau of Statistics, above n 18. 21 Comparative Performance Monitoring Report, above n 4. 22 Safe Work Australia, Work-Related Injuries in Australia, 2005-06: Factors Affecting Applications for Workers’

Compensation (2009). 23 Ibid. 24 Claire Mayhew and Michael Quinlan, ‘The Effects of Changing Patterns of Employment on Reporting Occupational

Injuries and Making Worker’ [sic] Compensation Claims’ (2001) 5 Safety Science Monitor 1.


10

Workers’ compensation schemes are complex systems and eligibility for workers’ compensation entitlements varies substantially between jurisdictions.26 Regional differences may also be due to differences in the working population and employment arrangements between States and geographic regions, which may influence the types of problems encountered. For example, in 2005-06 the rate of injuries in the Australian agriculture, forestry and fishing industries (109 per 1000 workers), which are concentrated in regional and rural areas, was 60% higher than the rate for all Australian workers.27 This is reflected in the current data where significant differences between States and geographic regions were observed, with regard to the proportion of unclaimed GP encounters. A limitation of this study is the reliance on the GP’s perception of whether or not a problem is work-related, dependent on the patient’s ability or preparedness to communicate it as work-related. Also, there may be cases where patients with work-related problems sought treatment at emergency departments during hours when their GP was not available and these would not be included in this analysis.

Workers’ compensation systems are designed to provide income replacement, health and vocational rehabilitation services to enable workers to recover from work-related injury or illness, and to provide an economic ‘safety net’ during the recovery period. Failure to apply for workers’ compensation limits the worker’s access to income benefits, health and vocational rehabilitation services. This may lead to longer periods of absenteeism or reduced productivity, which in turn may impact on the long-term health and wellbeing of the worker. It is now known that being out of work can be harmful for health.28,29 For example, unemployment can lead to higher risk of premature death and heighten the risk of complex chronic co-morbidities.30 Similarly, prolonged periods of time away from work can lead to or exacerbate mental health problems secondary to physical injury,31 social isolation, loss of income and increase the burden on healthcare and workers’ compensation systems.32 Appropriate supports provided via the workers’ compensation may improve return to work and subsequent health outcomes for the injured workers. Conversely, those failing to claim workers’ compensation may be at a disadvantage in terms of their health, economic and social recovery from the work-related injury or condition.

V. CONCLUSIONS This is one of the first investigations into the nature of GP treated occupational health problems that are claimed and not claimed through workers’ compensation. The findings suggest that there is a different mix of health problems managed in claimed and unclaimed GP encounters, and that unclaimed encounters are more likely to involve psychological and social problems than physical problems such as musculoskeletal injury. Thus it seems that the decision to make a workers’ compensation claim for a work-related condition may be influenced by a range of factors including the nature of the condition as well as its severity, jurisdictional eligibility and the worker and/or GP’s awareness of entitlements.

ACKNOWLEDGEMENTS Alex Collie is partially supported by research funding from the workers’ compensation authority in the state of Victoria, Australia.

25 Michael Quinlan and Claire Mayhew, ‘Precarious Employment and Workers’ Compensation’ (1999) 22

International Journal of Law and Psychiatry 491. 26 Comparative Performance Monitoring Report, above n 4. 27 Safe Work Australia, Work-Related injuries in Australia, 2005-06: Agriculture, Forestry and Fishing Industry

(2009), vii. 28Gordon Waddell and A Kim Burton, above n 2. 29 Carol Black, Working for a Healthier Tomorrow: Review of the Health of Britain’s Working Age Population

(Stationery Office, 2008). 30 Richard Wilkinson and Michael Marmot (eds), above n 1. 31 Ute Bültmann et al, ‘Health Status, Work Limitations, and Return-to-Work Trajectories in Injured Workers with

Musculoskeletal Disorders’ (2007) 16 Quality of Life Research 1167. 32 Richard Wilkinson and Michael Marmot (eds), above n 1.


11

AUTHOR CONTRIBUTIONS Alex Collie conceived the study and drafted the manuscript. Ying Pan conducted the data analysis. Joan Henderson and Helena Britt contributed to data analysis and manuscript preparation. All authors reviewed and approved the final manuscript.

MIND THE GAPS WORKERS’ COMPENSATION COVERAGE FOR COMMUTING INJURIES IN

AUSTRALIA

GENEVIEVE GRANT* AND DIANA M BOWMAN†

ABSTRACT Work-related transport accidents are a leading cause of work injury and death. A number of these accidents occur while workers are commuting between their home and workplace. Globally, there is dramatic variation in workers’ compensation coverage for commuting injuries. This inconsistency creates inequities for workers and contributes to confusion about the burden of injury.

Focusing on the Australian setting, this article identifies a series of dangerous gaps in the debate over workers’ compensation coverage for commuting injuries. It illustrates the disconnection between the terms of compensation coverage debates, which emphasise the lack of employer control over worker commuting activity, and public health evidence linking modern work practices and fatigue with commuting injury. The article calls for a genuine interdisciplinary effort to improve the evidence base and better inform decisions about compensation coverage for this neglected category of work injury.

I. INTRODUCTION Motor vehicle accidents are a leading global cause of work fatalities1 and account for an estimated 31 per cent of Australian work-related deaths.2 Some of these accidents take place during travel between a worker’s residence and place of work. Workers’ compensation (WC) schemes vary significantly in their coverage of these commuting injuries.3 In Australian compensation parlance, the claims connected with commuting injuries are known as ‘journey claims’.4 The principal WC schemes in Australia5 provide relatively uniform coverage for injuries sustained during journeys undertaken for what are regarded as work purposes. The schemes vary considerably, however, in their coverage of journey claims. For clarity in this article, the coverage of commuting injuries under no-fault WC schemes will be described as ‘journey claim coverage’ (JCC).

Workers’ compensation in Australia is decentralised, with the states, territories and Commonwealth each having their own schemes. The costs associated with this heterogeneity are

* BA, LLB (Hons); Research Fellow, Melbourne School of Population Health and PhD Candidate, Melbourne Law

School and Melbourne School of Population Health, The University of Melbourne. The authors sincerely thank the two anonymous referees of this paper for their helpful suggestions. We also acknowledge the Australian Council of Trade Unions, who funded the project from which this article is drawn.

† BSc, LLB, PhD; Assistant Professor, Health Management and Policy and the Risk Science Center School of Public Health, The University of Michigan.

1 See the studies summarised in Martine Hours et al, ‘Jobs at Risk of Work-Related Road Crashes: An Analysis of the Casualties from the Rhône Road Trauma Registry (France)’ (2011) 49 Safety Science 1270, 1270.

2 T Driscoll et al, ‘Comparison of Fatalities from Work Related Motor Vehicle Traffic Incidents in Australia, New Zealand, and the United States’ (2005) 11 Injury Prevention 294, 295.

3 M P Olivier, ‘Workers’ Commuting Injuries: A South African Perspective’ (1995) 16 Industrial Law Journal 559, 560; see also International Labour Office, Recording and Notification of Occupational Accidents and Diseases and ILO List of Occupational Diseases (Report V (2A)) (2002) 31-36.

4 Australian Safety and Compensation Council, Compendium of Workers’ Compensation Statistics Australia 2006-07 (Commonwealth of Australia, 2009) 75. Other examples of travel that are regarded as work-related and enjoy broader coverage include that between work and education and training activities and medical appointments. The discussion here focuses on claims for travel between work and home as these are the subject of the most inconsistent coverage.

5 By this we mean the WC schemes that exist in each of the states and the territories, and the Commonwealth’s Comcare scheme.


14

well documented, and periodically give rise to calls for greater consistency.6 Recent attention to regulatory harmonisation in the occupational health and safety sphere, and the effect of economic pressures on scheme viability, has the potential to stimulate increased interest in workers’ compensation coverage, including JCC.

This article identifies a range of gaps in the policy conversation about JCC. Firstly, it articulates gaps that cloud understanding of the scale of the problem of occupational commuting injury. Then, taking as its premise that no-fault compensation is the appropriate baseline compensatory response to work-related injury, the article outlines the existing state of no-fault compensation coverage for journey claims. This analysis highlights the patchwork nature of WC and transport accident compensation arrangements operating across Australia, bringing the gaps in coverage for commuting injury into sharp focus.

The article then examines the conceptual gap between compensation coverage debates and public health research evidence relevant to commuting injury. The key tenets of coverage debates in recent reviews are contrasted with the mounting public health evidence connecting work hours, fatigue and commuting injury. The article concludes by considering the responsibility void generated by the recent history of ‘rolling back’ JCC in Australia, and its implications. Also, the article highlights the room for additional perspectives by locating the weaknesses in JCC discourse. Though the article does not neatly resolve the JCC debate, it seeks to enliven the exchange with evidence in anticipation of reform-oriented discussion.

II. A DATA GAP: CHALLENGES IN IDENTIFYING THE SCOPE OF THE PROBLEM OF OCCUPATIONAL COMMUTING INJURY

A logical starting point in considering JCC is to identify the size of the problem the coverage seeks to address, namely occupational commuting injury. There is, however, a paucity of research investigating work-related transport accidents in Australia and elsewhere, particularly those occurring in commuting circumstances.7 Despite the significant burden these accidents impose on workers, their families, employers and the broader community, few studies have investigated their characteristics.8 The dearth of research in this area is connected to the limitations of the relevant data sources, which are in turn linked to the variable nature of the compensation coverage.

Workers’ compensation statistics provide an unreliable indicator of the extent of work-related injury.9 Along with the well-understood phenomenon of under-reporting of work injuries, significant parts of the labour market are not reached by workers’ compensation (particularly self-employed and precarious workers).10 Beyond these sizeable but generic concerns, there are data factors specific to commuting injuries that bear negatively upon efforts to locate and measure the target of JCC.

Official statistics on worker deaths in commuting accidents in Australia are problematic. The annual reports of work-related traumatic injury fatalities published by Safe Work Australia (SWA) are based on several sources of data that, even in combination, are not adequate to capture the scale of occupational commuting fatalities. The National Dataset for Compensation-Based Statistics only comprises compensable fatalities, meaning commuting fatalities occurring in states and territories without JCC are excluded.11 Similarly, SWA reports that although the National Coroners Information System contains data on work-related fatalities, ‘work-relatedness’ is not 6. See the inquiries catalogued in Robert Guthrie, Frances Meredith and Kevin Purse, ‘“Dust and Sweat” in Australian

Workers’ Compensation Systems: Policy Challenges for the Gillard Labor Government’ (2010) 5 Public Policy 40, 41. See also Michael Quinlan, Philip Bohle and Felicity Lamm, Managing Occupational Health and Safety: A Multidisciplinary Approach (Palgrave MacMillan, 3rd ed, 2010) 461.

7 Soufiane Boufous and Ann Williamson, ‘Work-Related Traffic Crashes: A Record Linkage Study’ (2006) 38 Accident Analysis and Prevention 14, 19.

8 Ibid. 9 See generally Rachel Cox and Katherine Lippel, ‘Falling Through the Legal Cracks: The Pitfalls of Using Workers’

Compensation Data as Indicators of Work-Related Injuries and Illnesses’ (2008) 2 Policy and Practice in Health and Safety 9.

10 Ibid. See also Michael Quinlan and Claire Mayhew, ‘Precarious Employment and Workers’ Compensation’ (1999) 22 International Journal of Law and Psychiatry 491.

11 Safe Work Australia, Work-Related Traumatic Injury Fatalities, Australia 2008-09 (SWA, 2011) iii (available from http://www.safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Documents/583/WorkRelatedTraumaticInjuryFatalitiesAustralia2008_09.pdf). See further Part III below.

MIND THE GAPS : WORKERS’ COMPENSATION FOR COMMUTING INJURIES IN AUSTRALIA

15

coded uniformly, especially for commuting and motor vehicle accident deaths. Finally, the Notified Fatalities Collection reports deaths occurring at work in accordance with OHS requirements, but ‘generally excludes incidents occurring on public roads’,12 making it unlikely that commuting fatalities are included. Taken together, these data limitations mean that the SWA statistics are somewhat euphemistically described as a ‘known undercount’ of occupational commuting fatalities.13

Driscoll et al suggest that if the official statistics on work-related traumatic death represent a ‘significant underestimate’ of the true magnitude of the problem, ‘[t]he situation is as bad, or worse, for non-fatal injuries.’14 They also note that police investigating transport accidents are primarily interested in identifying the at-fault party and any breaches of the law, rather than the work-related status of the incident.15 Such logistical limitations contribute to the patchy and fragmented nature of the collected data, creating a significant impediment for research on work-related transport accident injury.16 In a notable exception to the evidentiary ambiguity, Boufous and Williamson linked police crash data with workers’ compensation records for over 13,000 drivers who had been involved in an accident from 1998–2002 in New South Wales. The authors found that close to three quarters of casualties in the dataset occurred in the course of commuting.17 Additionally, a report of commuting injuries in jurisdictions with JCC in 2006-07 found an incidence rate of 2.9 journey claims per 1000 employees, compared with 14.2 non-journey claims per 1000 employees.18 Given the magnitude of the problem of commuting injury, JCC deserves the attention of stakeholders and an appropriate compensatory response. The next part of the article sets out the status of JCC in Australian schemes, moving from the data gap to the gap in compensation coverage for occupational commuting injury.

III. COMPENSATION COVERAGE GAPS: JOURNEY CLAIMS IN CONTEXT Workers’ compensation coverage for journey claims has a long history in Australia. In the 1940s, definitions of work-relatedness were expanded to provide coverage for the worker’s commute on the basis of the benefit of the journey for the employer.19 Starting in the early 1990s however, a number of legislatures removed JCC from WC statutes in the context of the broader winding back of WC benefits. These efforts were inconsistent across Australia, contributing the current status of JCC in WC schemes as ‘a complex mosaic of disparate arrangements.’20 This complexity is heightened by the parallel but equally patchy operation of no-fault transport accident compensation schemes, which provide an important alternative source of coverage in a number of jurisdictions.21

Locating JCC in the patchwork of parallel transport accident compensation provisions provides insight into the equity and efficacy of current compensation arrangements.22 The overview here focuses on no-fault compensation as it provides the most important and immediate benefits to injured workers in the wake of injury (typically medical and rehabilitation expenses and income benefits). Additionally, in a climate of reform, it is important that stakeholders understand the nature of the available coverage. Table 1 provides an overview of the characteristics of JCC across the nine principal WC schemes in Australia.

12 Ibid. 13 Ibid viii. 14 Timothy Driscoll et al, ‘Coverage of Work Related Fatalities in Australia by Compensation and Occupational Health

and Safety Agencies’ (2003) 60 Occupational and Environmental Medicine 195, 195. 15 Ibid 199. 16 Boufous and Williamson, above n 7, 20. 17 Ibid 16. 18 Australian Safety and Compensation Council, above n 4, 75. 19 Alan Clayton, Richard Johnstone and Sonya Sceats, ‘The Legal Concept of Work-Related Injury and Disease in

Australian OHS and Workers’ Compensation Systems’ (2002) 15 Australian Journal of Labour Law 1, 5-6. 20 Ibid 28. 21 As noted by Clayton et al, the broader range of other alternatives includes third party (fault-based) insurance claims,

‘the federal social security system, private disability insurance, occupational sick pay or drawing on personal savings’ (ibid at 28-29).

22 Ellen S Pryor, ‘Part of the Whole: Tort Law's Compensatory Failures Through a Wider Lens’ (2007-2008) 27 The Review of Litigation 307, 309-10.


16

Table 1: No fault compensation coverage for journey claims (as at 1 May 2012)

Jurisdiction JCC in workers’ compensationa

Year JCC excluded from

workers’ compensation

No-fault transport accident compensation available in

jurisdiction

New South Wales Yes - Nob

Victoria No 1992 Yes

Queensland Yes - No

Western Australia No 1993 No

South Australia No 1994 No

Tasmania No 1995 Yes

Northern Territory No 1991 Yes

Australian Capital Territory Yes - No

Commonwealth (Comcare) No 2007 Variablec

a. Workers Compensation Act 1987 (NSW) s 10(3); Accident Compensation Act 1985 (Vic) s 83(2)(b); Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 35(1)(a); Workers’ Compensation and Injury Management Act 1981 (WA) s 19(2)(a); Workers’ Rehabilitation and Compensation Act 1986 (SA) s 30(5) and (6); Workers Rehabilitation and Compensation Act 1988 (Tas) s 25(6) and (7); Workers Rehabilitation and Compensation Act (NT) s 4; Workers Compensation Act 1951 (ACT) s 36; Safety, Rehabilitation and Compensation Act 1988 (Cth) s 1(d) and 1C.

b. The NSW transport accident scheme currently has a quasi-hybrid status, providing a range of no-fault and fault-based benefits. In addition to common law benefits for claimants who can prove negligence, the scheme provides a limited level of no-fault benefits at an early stage of all claims up to a maximum of $5000 (Motor Accidents Compensation Act 1999 (NSW) ch 3 pt 3.2 (‘MACA’); damages for claimants injured in blameless accidents, and a ‘special entitlement’ in claims involving children (MACA ch 1 pt 1.2); and long term care and support to severely-injured claimants, regardless of fault (see generally Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)). In principle, however, the NSW scheme remains a predominantly fault-based compensation scheme.

c. Workers under the Comcare scheme could potentially be located in any Australian state or territory. In the event of occupational commuting injury workers under the Comcare scheme are generally reliant upon the transport accident compensation available in the jurisdiction in which they sustained their injury.

In jurisdictions where JCC is provided, there is variety in the precise terminology used to describe the worker’s residence in the coverage rules.23 The coverage is fettered by a number of common restrictions. For example, schemes with JCC typically limit coverage for injuries sustained when workers have substantially deviated from the journey between their residence and workplace.24 Limitations also arise where the worker has engaged in misconduct involving the consumption of alcohol or prohibited drugs.25 Nonetheless, the objective in schemes with JCC is clear – to recognise the work commute as an element of the work relationship and to provide coverage accordingly.

Table 1 shows the uneven nature of the coverage available in the most straightforward situation of a worker injured while commuting between their regular residence and place of

23 See for example the definition of the worker’s ‘home’ provided in Workers Compensation Act 1951 (ACT) s 36(5)

and Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 35(4); cf the definition of ‘place of abode’ in Workers Compensation Act 1987 (NSW) s 10(6).

24 See for example Workers Compensation Act 1951 (ACT) s 36(3) and Workers Compensation Act 1987 (NSW) s 10(2).

25 See for example Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 36(2) and Workers Compensation Act 1987 (NSW) s 10(1A) and (1B).


17

work.26 Currently, the WC arrangements in Victoria, Tasmania, Western Australia, South Australia, the Northern Territory and the Commonwealth Comcare scheme exclude these most basic journey claims. Journey claim coverage is available in the WC schemes in New South Wales, Queensland and the Australian Capital Territory.

For workers in jurisdictions without JCC, the optimal compensation pathway for commuting injury is the parallel transport accident injury compensation arrangements. Table 1 demonstrates that in three jurisdictions where JCC has been abolished (Victoria, Tasmania and the Northern Territory); the no-fault transport accident compensation system provides a ready alternative source of coverage. None of the jurisdictions that have preserved JCC through the WC system (New South Wales, Queensland and the Australian Capital Territory) have a no-fault transport accident scheme for workers with commuting injuries to rely upon. Finally, in Western Australia and South Australia, the worst-positioned states for workers injured in commuting accidents, in the complete absence of no-fault compensation coverage claimants must fall back on fault-based claims, private insurance, social security and other like measures in the event of commuting injury. In summary, the JCC landscape is heavily dependent on sources of support beyond WC schemes to fill its coverage gaps. It is therefore beset by inequity for workers. Given the lack of no-fault transport accident coverage in jurisdictions that currently provide JCC, if the harmonisation of JCC involves taking a ‘lowest common denominator’ approach consistent with the trend of curtailing JCC, many workers will be substantially disadvantaged.

IV. A CONCEPTUAL GAP: THE GULF BETWEEN COMPENSATION COVERAGE DEBATES AND PUBLIC HEALTH EVIDENCE

The above overview of the Australian JCC landscape illustrates the irregularity and capriciousness of the benefits available to workers injured in commuting accidents. To understand why this is so, and as a means of forecasting future reform debates, it is useful to consider the terms of the JCC discourse in its most recent iteration. By contrasting these terms with the public health evidence of the role of fatigue in commuting injury, the value of an engaged interdisciplinary approach to the issue of JCC becomes apparent. The article next considers the way JCC has been discussed in law reform debates, before focusing on the parallel discussions about work hours, fatigue and commuting injury in sources of public health evidence.

A. Evidence from recent law reform debates The most recent contest over JCC occurred when the coverage was removed from the Commonwealth Comcare WC scheme in 2007. The terms of the debate over JCC in the Comcare scheme reflect the traditional stances adopted by employers and workers in recent decades. The evidence of these terms discussed below is drawn from the Senate Committee review of the amending legislation, and the earlier recommendations of the Industry Commission and Productivity Commission upon which the relevant reforms of the Comcare scheme were largely based.27

The key argument consistently put by unions and individual employees in favour of JCC is that the journey to and from work is a fundamental feature of the work relationship and activity: were it not for the employment contract, the worker would not commute to the workplace and home again.28 Employers, employer groups and, ultimately, the reports of the Industry Commission, Productivity Commission and the Senate Standing Committee on Employment, 26 Note that although the South Australian scheme gives the appearance of providing JCC, the provisions in that

jurisdiction effectively exclude the most basic journey claim by specifying that ‘the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment’ (Workers’ Rehabilitation and Compensation Act 1986 (SA) s 30(6)). For a more detailed discussion of the terms of and exclusions from JCC in the different schemes, see Clayton et al, above n 19, 29-31.

27 These arguments were reiterated in the Federal Government’s recent review of the Comcare scheme (Department of Education, Employment and Workplace Relations, Report of the Review of Self-Insurance Arrangements Under the Comcare Scheme (Commonwealth of Australia, 2009) 24-25).

28 See for example the Queensland Council of Unions submission to the Productivity Commission’s Interim Report ‘National Workers’ Compensation and Occupational Health and Safety Frameworks’ (2004), 6 (available from http://www.pc.gov.au/__data/assets/pdf_file/0013/21037/subir241.pdf).


18

Workplace Relations and Education, justified the abolition of JCC in the Comcare scheme on two bases. Firstly, they argued that the presence of alternative sources of insurance or coverage obviates the need for JCC in WC. The reports referred to the presence of transport accident compensation schemes in some jurisdictions; the wider availability of third-party fault-based claims; and the option for employees to negotiate coverage at the enterprise level or obtain private insurance policies at their own expense, on an individual basis. These alternative coverage arguments reflect the cost-shifting imperative associated with the abolition of JCC, in that the costs are effectively shifted away from employers and WC schemes and onto alternative payers such as transport accident compensation schemes, social security, individual employees, and their families and communities. As the Productivity Commission conceded however, the availability of alternative forms of coverage ‘is not relevant to the basic rationale underlying compulsory coverage for employees under employer-financed schemes’, but rather ‘provides an added rationale’ for the removal of JCC.29

The second and more dominant argument in favour of the elimination of JCC seeks to construct commuting activity as being outside the ‘prism of employer controllable risk’.30 Employers argue that they have little control over the safety of a worker’s journey to and from work, and therefore injuries sustained in such journeys should not fall within the scope of ‘work-related’ injury for the purposes of WC.31 By extension, the Industry Commission also suggested that JCC is hard to justify from a ‘prevention perspective’: on this view, the employer’s lack of control over worker journeys means that ‘[m]aking employers liable for such losses is unlikely to lead to greater preventive effort in avoiding journey accidents.’32 The denial of employer control over worker safety during the commute has become the entrenched and tireless justification for the restriction of JCC, along with its cost-containment ramifications. Interestingly, reference to long and irregular working hours, shift work and fatigue are conspicuously absent from the recent debates over JCC. In particular, there was no discussion of the circumstances that give rise to commuting injuries and journey claims in the Productivity Commission and Parliamentary Committee reports in connection with JCC.33

B. Making the connection: Public health perspectives on the links between shift work, fatigue and commuting injury

Though the connection of working hours, fatigue and commuting injury has been neglected in JCC debates, these topics have come to increasing prominence in sources of public health evidence. The trend of eliminating JCC from Australia’s principal WC schemes in the last 20 years has been paralleled by developments in research and debate on the public health and safety problems associated with declining quantity and quality of sleep in modern society.34 Recent

29 Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks

(Commonwealth of Australia, 2004) 186-7. 30 Clayton et al, above n 19, 6. See also the restrictions on JCC described in Part III above. 31 Industry Commission, Workers’ Compensation in Australia (Commonwealth of Australia, 1994) 97; Productivity

Commission, above n 32, 186. This argument has long been a feature of JCC debates. See for example Hanks’ discussion of the removal of JCC from the Victorian WC scheme in 1992 ‘on the basis that the employer could not control or take responsibility for accidents that occurred while a worker was not at work’ (Peter Hanks, Accident Compensation Act Review: Final Report (2008) 64). Internationally, see the parallel arguments reported in South Africa (Olivier, above n 3 at 576) and Japan (Masahiro Ken Kuwahara, ‘Workers’ Compensation on Commuting Injuries in Japan’ (1995) 27 Journal of Law and Politics 1, 3-4).

32 Industry Commission, above n 34, G5-6. 33 Brief reference was made to shiftwork and fatigue in some trade union submissions to the Senate Committee review

of the amending legislation. See, for example, the submission of the Construction, Forestry, Mining and Energy Union (submission dated 22 January 2007, 2), which noted that

[t]he CFMEU has seen many examples where its members have been seriously hurt, maimed or even killed going to work or coming home from work when fatigued from long hours of overtime or after arduous work or as a result [of] being required to travel outside “normal” work hours.

This submission was reported without elaboration in the Opposition Senators’ report (Senate Standing Committee on Employment, Workplace Relations and Education, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill [Provisions] Report (2007) 20).

34 Francesco P Cappuccio, Michelle A Miller and Steven W Lockley, ‘Sleep, Health, and Society: The Contribution of Epidemiology’ in Francesco P Cappuccio, Michelle A Miller and Steven W Lockley (eds), Sleep, Health, and Society: From Aetiology to Public Health (Oxford University Press, 2010) 1, 5.


19

Australian Bureau of Statistics reports indicate that 16 per cent of Australian employees perform shift work, with particular concentrations in mining, accommodation and food services and healthcare and social assistance.35 The findings of recent coronial inquiries and the epidemiological literature call attention to the connection between shiftwork, extended work hours and the increased accident risk faced by the fatigued and commuting worker. These sources of evidence cast doubt on the purported disconnection between work practices and commuting injury risk, and therefore challenge the dominant frame of the JCC debate.

The elevation in worker fatigue levels with around-the-clock industrial operations and provision of goods and services36 is a subject of intense interest in public health research. Fatigue is increasingly regarded as ‘a major cause of workplace and transport-related mortality and morbidity.’37 While it has long been established that driver sleepiness and decreased alertness are associated with transport accident injury,38 the connection between worker fatigue and the changing nature of modern work practices potentially provides a new rationale for JCC in WC schemes.

The relatively limited published research on work-related transport accident injury highlights worker fatigue as an important risk factor. Robb et al report that the most consistent evidence regarding risk factors for work-related road traffic injuries relates to ‘fatigue- and sleepiness-related factors’, highlighting the need for more attention to shift work, hours of work and adequate rest breaks.39 In the healthcare sector, researchers have paid particular attention to the increased risk of commuting injury associated with shift work performed by nurses40 and junior doctors.41 A recent coronial inquest in Western Australia into the death of a young nurse in a single vehicle accident following a series of night shifts identified fatigue as ‘a major contributor to the fatal collision’.42 The Coroner made a series of recommendations about the need to implement policies to address the safety of staff engaged in shift work.43 Similarly, a coronial inquest into the deaths of three mine workers in two separate accidents involving drivers commuting home following night shifts connected the fatalities to driver fatigue.44 Commentators have highlighted that such industries as medical and emergency services, transport, manufacturing and defence have the characteristics that particularly give rise to worker drowsiness and the concomitant safety risks.45 As Quinlan, Bohle and Lamm have suggested however, ‘both long and irregular hours have more deeply infiltrated white-collar and professional occupations, when previously they had been largely confined to unskilled and semi-skilled occupations.’46 Recognition of such trends adds weight to the need to consider the way work organisation and practices contribute to the incidence of commuting injury.

35 Australian Bureau of Statistics, Australian Labour Market Statistics (ABS, October 2010) 20, 22. 36 Christopher Jones, Jillian Dorrian and Drew Dawson, ‘Legal Implications of Fatigue in the Australian

Transportation Industries’ (2003) 45 Journal of Industrial Relations 344, 344; see also J Axelsson, G Kecklund and M Sallinen, ‘Sleep and Shift-Work’ in Cappuccio, Miller and Lockley (eds), above n 37, 325, 325.

37 William J Horrey et al, ‘Research Needs and Opportunities for Reducing the Adverse Safety Consequences of Fatigue’ (2011) 43 Accident Analysis and Prevention 591, 591.

38 Jennie Connor et al, ‘Driver Sleepiness and Risk of Serious Injury to Car Occupants: Population Based Case Control Study’ (2002) 324 British Medical Journal 1125, 1127; see also Ann Williamson et al, ‘The Link Between Fatigue and Safety’ (2011) 43 Accident Analysis and Prevention 498. Note that Dawson and Reid report that ‘moderate levels of fatigue produce higher levels of impairment than the proscribed level of alcohol intoxication’ (Drew Dawson and Kathryn Reid, ‘Fatigue, Alcohol and Performance Impairment’ (1997) 388 Nature 235, 235).

39 G Robb et al, ‘A Systematic Review of Epidemiological Studies Investigating Risk Factors for Work-Related Road Traffic Crashes and Injuries’ (2008)14 Injury Prevention 51, 52-57.

40 Jillian Dorrian et al, ‘Sleep and Errors in a Group of Australian Hospital Nurses at Work and During the Commute’ (2008) 39 Applied Ergonomics 605; Linda D Scott et al, ‘The Relationship Between Nurse Work Schedules, Sleep Duration, and Drowsy Driving’ (2007) 30 Sleep 1801.

41 Laura K Barger et al, ‘Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns’ (2005) 352 New England Journal of Medicine 125.

42 Inquest into the Death of Annemarie Evelyn Sweeny (Western Australia, State Coroner A N Hope, 20 December 2010) 23.

43 Ibid 28. 44 Inquest into the Deaths of Malcolm MacKenzie, Graham Peter Brown and Robert Wilson (Queensland, State

Coroner Annette Hennessy, 23 February 2011) 31. 45 CB Jones, CJ Lee and SMW Rajaratnam, ‘Sleep, Law, and Policy’ in Cappuccio, Miller, and Lockley (eds), above n

37, 417, 417-8. 46 Quinlan, Bohle and Lamm, above n 6, 280.


20

It is important to acknowledge that the empirical evidence of the relationships between work, fatigue and commuting injury has its shortcomings. Further research is required to better understand the ‘relatively invisible hazard’ of working shifts.47 The scientific literature has not yet agreed upon a consistent definition of fatigue.48 Additionally, the role played by fatigue in accident causation is often difficult to identify, owing to the lack of an objective or ‘gold standard’ test.49 Despite these challenges, the evidentiary trend gives rise to a more complex understanding of commuting injury than has been evident in JCC debates to date. Rather than being beyond the control of the employer, the safety of a dangerously-fatigued worker’s commuting activity may be connected to the employer’s responsibility to provide safe work systems and conditions. There is therefore a legitimate role for public health research to inform the way the coverage of journey claims is conceptualised. These developments have the potential to open up a valuable field of dialogue between disciplines including occupational health and safety, injury epidemiology, sociology and law to improve the evidence upon which JCC is based.

V. CONCLUSION: A RESPONSIBILITY GAP AND ITS IMPLICATIONS This article has identified empirical and conceptual gaps in the JCC discourse in Australia, though they are also likely to exist elsewhere. The paucity and limitations of data effectively obscure the scale of the problem of commuting injury,50 robbing it of the policy attention it deserves. The gaps in coverage for commuting injury create a reliance on alternative compensation schemes or leave workers without no-fault coverage in the event of injury. Additionally, the terms of the recent policy debates over JCC are disconnected from the public health evidence of the impact of work-related fatigue on commuting injury. In combination, the identified gaps in data, compensation coverage and interdisciplinary understanding create a further gap – in responsibility for worker safety in commuting activity. Without a more considered approach, commuting injuries and JCC may be destined to remain a casualty of the artificially bright line drawn between the work and home domains.

Johnstone has suggested that it is necessary to draw on the research perspectives and findings of different disciplines in order to ensure optimal regulation of workplace hazards.51 The same can be said of the most appropriate way to develop the evidence base for compensation law and policy. Failure to recognise the disciplinary complexity of injury compensation systems and value of contributions from different disciplines has previously contributed to the production of flawed evidence in compensation research settings.52 Admittedly, some commentators argue that the recent course of the JCC debate simply ‘highlights the role of interest groups and cost considerations in determining what types of claim are covered by workers’ compensation.’53 Though optimistic, this article has demonstrated that recognition of the empirical challenges and value of public health perspectives could create a stronger basis for JCC reform. Currently, the incomplete understanding of commuting injury, patchwork compensation coverage and deficient debate are mutually reinforcing, conspiring to inhibit evidence-based policy and reform in this important but maligned area of work injury.

47 Institute for Work and Health, Scientific Symposium: The Health Effects of Shift Work: Summary Report (2010),

available at http://www.iwh.on.ca/system/files/documents/shift_work_2010_summary_report.pdf, 1, 13. 48 Lee Di Milia et al, ‘Demographic Factors, Fatigue and Driving Accidents: An Examination of the Published

Literature’ (2011) 43 Accident Analysis and Prevention 516, 517-518. 49 Igor Radun and Jenni E Radun, ‘Convicted of Fatigued Driving: Who, Why and How?’ (2009) 41 Accident Analysis

and Prevention 869, 869 (noting that ‘there are no criteria for the unambiguous detection of fatigue/sleepiness as a major or contributing factor in accident causation. Whether the particular accident will be coded into official statistics as sleep related or not depends solely on police officers’ subjective opinions’); see also Williamson et al, above n 41, 512.

50 See the similar observations made by Olivier, above n 3, 575. 51 Richard Johnstone, Occupational Health and Safety Law and Policy: Text and Materials (Law Book, 2nd edition,

2004) 23; see also Jones, Lee and Rajaratnam, above n 48, 430-1; and Quinlan, Bohle and Lamm, above n 6, 69 and 234 (noting the increasing evidence of multidisciplinary research and discourse since 2000).

52 See for example Genevieve Grant and David M Studdert, ‘Poisoned Chalice? A Critical Analysis of the Evidence Linking Personal Injury Compensation Processes with Adverse Health Outcomes’ (2009) 33 Melbourne University Law Review 865.

53 Quinlan, Bohle and Lamm, above n 6, 424.

COMPENSATION OF HAND-ARM VIBRATION SYNDROME IN CANADA

AARON THOMPSON, ALICE TURCOT, SAMI YOUAKIM, RON HOUSE*

ABSTRACT Objectives To provide an overview of the legislative landscape for hand-arm vibration syndrome (HAVS) in Canada, and to investigate HAVS compensation practices and trends in each of Canada’s thirteen provinces and territories. Methods The initial stage of this study reviewed existing legislation pertaining to hand-arm vibration in the Canadian provinces and territories. In the second stage of the study, Compensation Board policies in each jurisdiction were reviewed and the Compensation Boards were contacted to request information on adjudication criteria and recent claims data. Results Only two of the thirteen provinces and territories have regulations addressing vibration exposure. There were 1190 identified claims accepted for HAVS in Canada in the six year period spanning 2003 to 2008 (average 198 claims per year). Considerable variation was found in assessment methods, adjudication policies, and the number of accepted claims for HAVS across jurisdictions. Conclusions There exists a regulatory gap for HAV in Canada. Relative to prevalence estimates, the number of claims identified suggests under-recognition and under-reporting of HAVS in most Canadian jurisdictions. Compensation boards should refine their policies pertaining to HAVS case definition and adjudication criterion.

I. INTRODUCTION Hand-arm vibration syndrome (HAVS) is an occupational disorder manifesting as vascular, neurological and musculoskeletal symptoms arising in the upper limb after exposure to hand-transmitted vibration.1 HAVS has been a recognised occupational disease for over a century, with the first report of the condition published in Italy by Giovanni Loriga in 1911.2 Alice Hamilton subsequently published a detailed report in 1918 identifying HAVS in limestone quarry workers in Bedford, Indiana.3 A follow-up study of workers at the same quarry in 1978 showed no appreciable change in the prevalence of HAVS (89% in 1918 vs. 80% in 1978).4 The findings of the 1978 follow-up study reflect the HAVS experience globally as the condition generally continues to be under-recognised despite remaining highly prevalent. The European Union is a notable exception as it has recently legislated occupational exposure limits for hand-arm vibration

* Aaron Thompson MD, MPH, FRCPC, Assistant Professor, Faculty of Medicine, University of Toronto, Physician,

St. Michael’s Hospital, Toronto, Ontario, Canada. Alice Turcot, MD, MSc, FRCPC, Associate Professor, Laval Université, Québec, Québec, Canada. Sami Youakim MD, MSc.,CCPF, FRCPC, Clinical Assistant Professor, Department of Medicine, University of British Columbia, Vancouver, BC, Canada. Ron House MD, CM, MSc, DIH, FRCPC, Assistant Professor, Faculty of Medicine , University of Toronto, St. Michael’s Hospital, Toronto, Ontario, Canada.

1 B Noël, ‘Pathophysiology and Classification of the Vibration White Finger’ (2000) 73 International Archives of Occupational and Environmental Health 150.

2 G Loriga, ‘Il lavoro con i martelli pneumatici [Work with Pneumatic Drills]’ (1911) 2 Bollettino dell'Ispettorato del Lavoro [Bulletin of the Labour Inspectorate] 35 [Google trans].

3 A Hamilton, ‘A Study of Spastic Anemia in the Hands of Stonecutters: An Effect of the Air Hammer on the Hands of Stonecutters’ (Industrial Accidents and Hygiene Series no 19, Bulletin no 236, United States Bureau of Labor Statistics, 1918).

4 W Taylor et al. ‘Effect of the Air Hammer on the Hands of Stonecutters. The Limestone Quarries of Bedford, Indiana, Revisited’ (1984) 41 British Journal of Industrial Medicine 289.


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(HAV).5 From a compensation standpoint, the best known cohort of workers ever assessed for HAVS were miners evaluated by the direction of the Department of Trade and Industry in the United Kingdom;6 described as ‘the largest group of workers in the world claiming compensation for any single industrial disease’.7

Despite the recent legislative progress and compensation activity in Europe, prevalence estimates for HAVS remain poorly characterised. A Medical Research Council (MRC) postal survey in 1998 in the U.K. gave an estimate of 288,000 prevalent cases of HAVS in Great Britain.8 With respect to Canadian statistics, Patterson published a study reporting crude claims figures for HAVS in the years preceding 1984.9 The most comprehensive claims data at that time were from Ontario, with 1585 accepted claims for vibration white finger (HAVS) in the 64 years spanning 1920 and 1984. Claims data were not available from other provinces. A more recent report from Quebec suggested under recognition of HAVS in that province,10 though data are limited and there remains a paucity of information on this subject for Canada’s other provinces and territories. As an industrialised country demographically similar to the United Kingdom, but with a smaller population, one could postulate there to be perhaps 160,000 cases of HAVS in Canada. If the actual number of HAVS cases in Canada is even close to this estimate, the authors’ collective experience with HAVS in Canada’s three largest provinces (Ontario, Quebec and British Columbia) suggests that the condition is under recognised and under compensated.

This exploratory study was designed to investigate the number of accepted HAVS workers’ compensation claims in Canada; to investigate compensation practices for HAVS used by each provincial and territorial compensation board, and to provide an overview of the legislative landscape as it relates to HAVS in Canada’s thirteen provinces and territories. In doing so, the study aimed to identify gaps in the current legislative framework pertaining to HAVS and to describe the adjudication procedures for HAVS used by compensation boards in each jurisdiction.

II. STUDY DESIGN AND METHODS The study was conducted in two stages. Stage 1 consisted of reviewing the existing legislation pertaining to HAV in the 10 provinces and 3 territories in Canada. This stage of the study involved a review of the occupational health and safety Acts and Regulations in each province and territory to determine what, if any, sections address vibration exposure in general and HAV exposure in particular. The compensation Acts and Regulations in each province were reviewed for sections relating to hand-transmitted vibration and the adjudication of claims for ‘hand-arm vibration syndrome’, ‘vibration white finger’ or other potentially related terms using the general search terms ‘vibration’ and ‘vascular’.

Stage 2 of the study consisted of directly contacting the Compensation Boards of each province or territory to request the following information: 1) whether HAVS was a compensable occupational disease in their jurisdiction, 2) the criteria, inclusive or exclusive, used for HAVS claims adjudication in their jurisdiction, and 3) the number of HAVS claims accepted for the most recent years available in their statistical records. Physician contacts at each Board were used in the initial request for information. Where physician contacts were not available, inquiry was made to an alternative contact as advised by the Board in question. In cases where a given board did not have a prescriptive policy with respect to entitlement criteria or diagnostic testing modalities, an

5 Directive 2002/44/EC of the European Parliament and of the Council of 25 June 2002 On the Minimum Health and

Safety Requirements Regarding the Exposure of Workers to the Risks Arising from Physical Agents (Vibration) (16th Individual Directive Within the Meaning of Article 16(1) of Directive 89/391/EEC) [2002] OJ L 177/13.

6 I J Lawson and K L McGeoch, ‘A Medical Assessment Process for a Large Volume of Medico-Legal Compensation Claims for Hand-Arm Vibration Syndrome’ (2003) 53 Occupational Medicine 302.

7 G Proud et al, ‘Cold Provocation Testing and Hand–Arm Vibration Syndrome – an Audit of the Results of the Department of Trade and Industry Scheme for the Evaluation of Miners’ (2003) 90 British Journal of Surgery 1076.

8 K T Palmer et al, ‘Hand-Transmitted Vibration: Occupational Exposures and Their Health Effects in Great Britain’ Health and Safety Executive Contract Research Report 232/1999 (HSE Books, 1999) 35.

9 Craig Paterson, ‘Canadian Compensation Law and Vibration-Induced White Finger: A Revised Description’ (1986) 12 Scandinavian Journal of Work, Environment and Health 402.

10 Alice Turcot, Sophie Roy and André Simpson, Lésions professionnelles reliées aux vibrations main-bras au Québec, 1993 à 2002 - Partie II: Analyse descriptive des dossiers d'indemnisation des travailleurs [Injuries Related to Hand-Arm Vibration in Quebec from 1993 to 2001 – Part II: Descriptive Analysis of Records of Workers’ Compensation]. (Études et recherches / Rapport R-492 IRSST, 2007.


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effort was made to speak directly with the physician(s) who conduct the HAVS assessments for the Board in question to further clarify the diagnostic approach.

The data were organised into summary charts for each province using the following headings: (A.) legislation, (B.) Board recognition of disease, (C.) entitlement criteria, (D.) testing modalities, (E.) claims data, and (F.) impairment rating. Claims data from each jurisdiction were combined to provide descriptive summary statistics for each province and for the country as a whole.

Ethics approval was not deemed necessary given that the study analysed data on a group level (no personal health information was collected) and the information reviewed for the policy and legislative portion of the study constituted publically available information.

III. RESULTS Each of the ten provinces (Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, and Saskatchewan) have their own Occupational Health and Safety Acts and their own Workers’ Compensation Acts or equivalent, as does the Yukon territory. The Northwest Territories (NWT) and Nunavut are governed by the same workers’ compensation Act and workers’ compensation is administered by the same agency. As such, there are 12 Compensation Boards in Canada covering the 13 provinces and territories. Nine of the 12 Boards have Schedules and Regulations for occupational disease. Occupational diseases are not listed in Schedules or Regulations in the NWT & Nunavut, Prince Edward Island, or the Yukon. Of the 12 compensation boards across Canada, 11 responded to our request for information.

A. Legislation Only two provinces, British Columbia and New Brunswick, have legislation specifically addressing exposure limits for hand-transmitted vibration. British Columbia legislation (BC Reg 296/97, Part 7, Division 2 – Vibration Exposure)11 mandates occupational exposure limits for HAV to conform to the limits specified by the American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Values and Biological Exposure Indices.12 New Brunswick vibration exposure legislation (O.C. 91-1035, General Regulation NB 91-191, Section 33.2 [Vibration]) also reflects the ACGIH threshold limit values (TLV), though the legislation does not reference the ACGIH specifically. The other provinces and territories could theoretically use their general duty clause to enforce the ACGIH TLV for HAV or other existing guidelines though, in the authors’ experience, this provision has rarely, if ever, been used for this purpose. The only mention of vibration in Canadian federal legislation is with respect to whole body vibration (SOR/86-304, section 14.1). Canadian federal legislation does not address HAV in particular.13

B. Compensation Board Recognition of HAVS All of the Canadian compensation board policies and/or Acts and Regulations acknowledge HAV related disease in some capacity with the exception of two: New Brunswick and Nova Scotia. New Brunswick Policy does address vibration in the context of cumulative trauma disorders and as a hazard under its defining of physical agents. Board recognition of HAVS, where present, is generally found in Board policy manuals and/or permanent impairment rating guides. Terminology varies by jurisdiction, with some jurisdictions referencing HAVS specifically, while others use such terms as ‘whitehand vibration syndrome’, ‘white finger disease’, ‘vibration induced white finger’, ‘Raynaud’s phenomenon [of occupational origin]’ or cover the condition under the more general terms ‘vibration induced diseases’ or ‘diseases caused by vibrations’. With respect to New Brunswick and Nova Scotia, lack of specification of the disease in official board documents does not necessarily mean that claims for HAVS are not recognised in these

11 Workers’ Compensation Act, Occupational Health and Safety Regulation, BC Reg 296/97. 12 ACGIH Annual Reports for the Year 2009: Committees on Threshold Limit Values (TLVs) and Biological Exposure

Indices (BEIs) (American Conference of Governmental Industrial Hygienists, 2009). 13 Canada Occupational Health and Safety Regulations, SOR/86-304, s.14.10


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provinces. For example, claims were identified for HAVS in New Brunswick in the years preceding 2003 (though none were awarded in the study period spanning 2003-2008). In Nova Scotia, while no cases of HAVS per se were identified, claims were identified for other conditions that may have been HAVS but were classified as other conditions (for example, a claim was identified for ‘jack hammer neuritis and tendonitis’).

C. Entitlement Criteria Initial entitlement criteria used in the adjudication of HAVS claims vary considerably by province (Table 1). In 6 of the 12 provinces and territories, duration of exposure is specified as requiring at least 2 years of exposure immediately preceding the onset of vascular disease. This exposure metric provides for a wide range of potential exposure durations because, depending on the job, 2 years of exposure could amount to between 500 hours or less (for workers using vibrating tools for less than 1 hour per day) to 2800 hours (for workers using vibrating tools up to 6 hours per day). Two jurisdictions, British Columbia and the NWT & Nunavut, specify a minimum number of hours of exposure required for initial entitlement criteria; at least 1000 hours in British Columbia and 3500 hours in the NWT & Nunavut. The other provinces and territories either do not specify initial entitlement criteria, or simply require confirmation by the assessing physician. TABLE 1: Entitlement criteria used by compensation boards in the Canadian provinces and territories to determine the eligibility of a claim for hand-arm vibration syndrome for compensation

Province/Territory Initial Entitlement Criteria

British Columbia At least 1000 hours of exposure

Alberta At least 2 years of exposure immediately preceding vascular disease Saskatchewan Not Specified Manitoba Not specified Ontario At least 2 years of exposure immediately preceding vascular disease Québec Not Specified New Brunswick Not Specified Nova Scotia Not Specified Prince Edward Island At least 2 years of exposure immediately preceding vascular disease Newfoundland & Labrador Not Specified NWT & Nunavut At least 3500 hours of exposure Yukon At least 2 years exposure immediately preceding vascular disease

D. Testing modalities The testing modalities used for diagnosis and impairment rating for HAVS by province and territory are listed in Table 2. The most commonly used tests are Doppler examination of the upper extremities (four jurisdictions), plethysmography (four jurisdictions) and thermometry (three jurisdictions). Doppler assessment (used in British Columbia, Ontario, Quebec and NWT & Nunavut) is conducted to rule out large vessel disease, but is also done in conjunction with cold provocation in NWT & Nunavut to assess the presence of Raynaud’s phenomenon. In Ontario, Quebec and New Brunswick, Raynaud’s phenomenon is assessed using plethysmography pre-post cold provocation (indicates induction and severity of vasospasm). Plethysmography in British Columbia does not involve cold provocation. British Columbia, Ontario and Quebec also use thermometry with cold provocation to assess Raynaud’s phenomenon (measures recovery from vasospasm). With respect to the neurological component of HAVS, electromyography/nerve conduction studies are used in four provinces/territories (British Columbia, Ontario, Quebec and NWT & Nunavut), though Ontario is the only province where such testing is specifically prescribed by board policy. Testing for the musculoskeletal aspects of HAVS (using grip strength) is specified by two compensation boards in Canada: Ontario and the NWT & Nunavut.


25

TABLE 2: Testing modalities used for diagnosis and impairment rating determination of claims for hand-arm vibration syndrome in the Canadian provinces and Territoriesa

Province/ Territory

Physician Diagnosis

Doppler (upper

extremities)

Plethysmog-raphy

Thermom-etry

NCS/EMG

Current Perception Threshold

Grip Strength

British Columbia

X Xb Xb,c Xb Xb

Alberta X

Saskatchewan X Manitoba Xd

Ontario X X X Xe X X Québec X Xb X X X

New Brunswick Xb Nova Scotia

Prince Edward Island

X

Newfoundland & Labrador

North West Territories & Nunavut

Xf X X

Yukon X a Physician diagnosis is presumably required by all boards, but is only specifically addressed by board policy where listed. b Not prescribed by board policy but done at physician’s discretion. c Plethysmography testing in British Columbia does not involve cold-provocation d Impairment rating schedule requires evidence of arterial occlusion ‘as tested by either Allen's test, digital pressures, or angiography’ e Required if a specific claim of paresthesia is addressed f Doppler assessment at room temperature and with cold immersion; a positive response is interpreted as Raynaud’s phenomenon.

E. Impairment ratings Workers’ compensation boards in Canada use either an internal impairment rating guide and/or the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) for impairment rating determinations.14 One province (Alberta) uses an internal rating guide but defers to the most recent edition of the AMA Guides [currently the 6th edition] in cases where a given disease is not addressed by the internal guide. Of the three provinces that exclusively use the AMA Guides, the 4th edition is used by two provinces (Prince Edward Island and Nova Scotia), and the 3rd edition is used by one (Ontario). The Maximum impairment rating for HAVS was available for five provinces and territories: Alberta (50%), British Columbia (20%), Manitoba (50%), Ontario (79% upper extremities, 89% whole body [includes feet]), and the NWT & Nunavut (12%). Only one province, Ontario, includes vascular effects in the feet in its impairment rating determination.

F. Claims Data Compensation boards in the ten provinces and three territories were asked to provide information about HAVS claims. The province of Newfoundland and Labrador was unable to identify specific HAVS claims based on their current record keeping methods. The NWT and Nunavut Workers’ Safety and Compensation Commission [WSCC] did not respond to our request for information. 14 R Rondinelli et al (eds), Guides to the Evaluation of Permanent Impairment (American Medical Association, 6th ed,

2007).


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Claims data were available for 10 of the 12 Compensation Boards in Canada with the most recent summary data available for all jurisdictions being up to the year 2008 (Table 3). In the 6 year period 2003 to 2008 there were 1190 HAVS claims identified in Canada with the largest number of accepted claims being in Ontario (940) followed by Quebec (187) and British Columbia (39). There was an average of 198 accepted claims per year across the entire country, with 79% of these occurring in Ontario.

TABLE 3: Accepted claims for hand-arm vibration syndrome in the Canadian 2003 to 2008 Province/Territory Number of Accepted

Claims for HAVS British Columbia 39 Alberta 8 Saskatchewan 5 Manitoba 9 Ontario 940 Québec 187 New Brunswick 1 Nova Scotia 0 Prince Edward Island 0 Yukon 1 Note: 1. Newfoundland and Labrador were unable to identify specific HAVS Claims based on current record

keeping methods. 2. The North West Territories did not respond to our request for information. 3. Data keeping methods in New Brunswick may have resulted in claims being missed during the study

period because statistics are generated by querying the system for a specific National Work Injury Statistics Program (NWISP) nature of injury code. A detailed validation review for the period 1992-2003 showed 11 claims (about 1 a year) for this period suggesting that the actual number of claims from 2003-2009 may have been ≈ 7.

4. In Nova Scotia there were no accepted HAVS claims. There were 2 claims submitted for ‘Raynaud’s syndrome or phenomenon, vibration induced white finger disease’ and 1 claim submitted for ‘Raynaud’s syndrome’, though in all three the Raynaud’s was deemed to be a pre-existing (personal) condition not arising during or from the course of employment. There were 8 carpal tunnel syndrome claims accepted for occupational vibration exposure, and 2 other claims accepted for ‘finger numbness’ and ‘jack hammer neuritis and tendonitis’.

IV. DISCUSSION The principal findings of this study were 1) prevention of HAVS has not been a legislative priority in Canada, 2) there is considerable variation across Canada in the assessment procedures and impairment rating methods used for HAVS by compensation boards, and 3) the number of accepted claims for HAVS in Canada appears to be low and varies considerably by jurisdiction with most claims being concentrated in a single province. While it is quite likely that similar disparities exist in other countries, especially those having de-centralised governance structures similar to Canada, the findings of this study are nonetheless intriguing in their identifying a legislative gap for HAVS in Canada and striking variations in compensation practices and number of awarded claims across jurisdictions. It should be noted that it is not necessary for a disease to be listed in legislation for the disease to be compensable in Canadian jurisdictions, so these data do not imply that some jurisdictions are failing to recognise the disease altogether, however lack of listing in legislation likely contributes to under recognition, under reporting, and lower likelihood of compensation of affected workers, thereby negatively impacting upon the compensation experience of individual claimants.

Canada is ahead of the United States but behind Europe with respect to legislation governing exposure to HAV. Legislated exposure limits for hand-transmitted vibration in Europe are outlined in EU Vibration Directive (2002/44/EC), which promulgates regulations for addressing exposure to hand-arm and whole body vibration in the workplace.15 In the United States, there is

15 See n5 above.


27

an American National Standards Institute (ANSI) standard addressing hand-arm vibration (ANSI S2.70),16 though ANSI’s publications are not enforceable unless a government entity adopts them and, at present, the U.S. Occupational Safety and Health Administration (OSHA) has not adopted a HAV standard.17 In Canada, only two of the 13 provinces and territories have specified occupational exposure limits for HAVS. These limits reflect the current ACGIH TLV for hand-arm vibration, which is a commonly used approach to the setting of occupational exposure limits.

This study found the initial entitlement criteria used for HAVS adjudication to vary widely across the Canadian provinces and territories. Most common is the requirement of at least two years of exposure immediately preceding the onset of vascular disease, which may reflect data published by Miyashita et al who reported that, in forestry workers, symptoms of HAVS did not typically appear until after 2000 hours of exposure.18 Other studies have reported latencies between exposure and the development of HAVS to range from six weeks to over 14 years.19 British Columbia and the NWT & Nunavut specify the actual number of hours of exposure required; at least 1000 hours in British Columbia and 3500 hours in the NWT & Nunavut. Though defining the number of hours of exposure is more specific than number of years of exposure, neither method addresses the more important issue of exposure magnitude. Compensation boards should consider vibration magnitude as well as duration of exposure in making determinations for entitlement criteria because rigid criteria for number of hours of exposure may unjustly deny claimants with short durations of exposure to high intensity vibration while inappropriately considering claims for individuals with long durations of exposure to low intensity vibration.20

The wide variation between Boards with respect to HAVS testing modalities reflects the complexity of HAVS diagnosis and the fact that there is currently no standardised assessment protocol used by any given country, jurisdiction or centre. The diagnosis of HAVS is complicated by involvement of three distinct systems (vascular, neurological and musculoskeletal) along with the fact that the differential diagnosis for each system outcome is broad. The occupational history (to confirm exposure) and past medical history (to rule out competing causes of presenting symptoms) remain the mainstay of diagnosis and this seems to be reflected by all boards in requiring physician diagnosis (though not necessarily specifying an occupational medicine specialist for this purpose). Objective verification of disease is of obvious importance in compensation settings and cold provocation tests are performed in at least four provinces and two territories. The neurological component of HAVS is explicitly recognised by four of the provinces/territories by their inclusion of electromyography (EMG)/nerve conduction studies (NCS) in the HAVS assessment process. Only one provincial Board’s policy (Ontario) specifies objective neurological testing over and above EMG/NCS using aesthesiometer and vibration perception threshold tests (thereby considering the possibility of diffuse digital neuropathy). Attribution of musculoskeletal pathology to HAVS is difficult due to multiple concurrent ergonomic risk factors that exist in work that involves use of vibrating tools. That said, in rare instances where no co-morbid conditions exist (epicondylitis, carpal tunnel syndrome, significant osteoarthritis, hand pain, et cetera), grip strength using a dynamometer remains the primary test for musculoskeletal HAVS.21 The Purdue pegboard and other tests of manual dexterity may also be useful in disability determination. A majority of current Board policies tend not to address one 16 American National Standards Institute, ANSI S2.70: Guide for the Measurement and Evaluation of Human Exposure

to Vibration Transmitted to the Hand (2006). 17 Donald E Wasserman, ‘Manufacturing and the New ANSI S2.70-2006 Hand–Arm Vibration Exposure Standard’

(2008) 18 Human Factors and Ergonomics in Manufacturing 658. 18 K Miyashita et al, ‘Epidemiological Study of Vibration Syndrome in Response to Total Hand-Tool Operating Time’

(1983) 40 British Journal of Industrial Medicine 92. 19 Bruce P Bernard (ed), Musculoskeletal Disorders and Workplace Factors: A Critical Review of Epidemiologic

Evidence for Work-Related Musculoskeletal Disorders of the Neck, Upper Extremity, and Low Back (US Department of Health and Human Services, 1997).

20 Ronnie Lundström, ‘Effects of Local Vibration Transmitted from Ultrasonic Devices on Vibrotactile Perception in the Hands of Therapists’ (1985) 28 Ergonomics 793; Y Tominaga, ‘Dose-Response Relation for the Vibration Syndrome’ in A J Brammer and W Taylor (eds) Vibration Effects on the Hand and Arm in Industry (John Wiley, 1982) 277.

21 Kenneth L McGeoch and W Harper Gilmour, (2000) 57 ‘Cross Sectional Study of a Workforce Exposed to Hand-Arm Vibration: With Objective Tests and the Stockholm Workshop Scales’ Occupational and Environmental Medicine 35.


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or more components of HAVS, so improved case definition and implementation of a standardised assessment protocol is recommended.

Impairment rating in compensation cases is closely tied to case definition and the judicious use of diagnostic tests. Comment on the appropriateness of impairment ratings used by workers’ compensation boards in the provinces and territories is beyond the scope of this study, though it is noted that the most commonly used impairment rating guide is the AMA Guides. Maximum impairment ratings vary widely by province (from 12-89%), which may reflect the fact that not all components of HAVS are recognised by each jurisdiction’s policies (e.g. musculoskeletal effects, or vascular effects in the feet).

The most pertinent finding of this study was the small number of accepted HAVS claims in Canada in relation to prevalence estimates using comparative statistics in Great Britain. The previously mentioned MRC 1998 postal survey determined a prevalence estimate of 288,000 cases of vascular HAVS (0.0005% of Britain`s 57 million population at that time). The Health and Safety Executive in Great Britain previously compensated an average of 3000 or more cases of HAVS annually, a number that has now declined to an average of 1000 claims per year.22-,23 As a demographically similar country with a population of about half the size, one could postulate that there to have approximately 160,000 cases of HAVS in Canada during the study period spanning 2003-2008. The fact there was only an average of 198 claims accepted per year suggests under recognition and/or under reporting of HAVS in Canada. The low number of accepted claims observed in this study is consistent with findings previously reported in Quebec,24 and trends in occupational disease recognition and reporting in general.25 In the case of HAVS, the degree of underreporting may be greater than other occupational diseases because it is not a widely known disease entity.

The large difference in concentration of claims by province (79% of all claims were in Ontario) may in part be explained by the fact that Ontario is the most populous province in Canada, followed by Quebec then British Columbia. However, the relative population size differences in each province are not large enough to account for the degree of differential claim numbers observed in the study. It may be that some provinces have a lower prevalence of occupational HAV exposure. However, the construction industry is present in every province so at least some cases would be expected even in jurisdictions where mining and forestry are not dominant industries. Perhaps the best explanation for the high number of accepted claims in Ontario is that it is the only province that has a university affiliated hospital based clinic dedicated to detailed clinical assessment of workers with HAVS thereby reflecting some degree of ascertainment bias.

The methodological strengths of this study include its broad consideration of legislation and compensation board policies across Canada. A limitation of this study was that not all compensation boards include HAVS as a specific diagnosis for statistical record keeping purposes, so it is possible that the study was affected by outcome misclassification resulting in underestimation of the actual number of HAVS related claims. That said, the number of misclassified HAVS claims would have to be significant to account for the degree of underreporting suggested by this study, and would not likely account for the large disparity in concentration of claims by province.

Future research should focus on two areas; 1) education and implementation of primary prevention at the level of governments (legislative/policy/implementation), employers and workers and 2) refinement of HAVS case definition to improve the HAVS adjudication process. Neither task is simple, with the implementation of primary prevention being the more challenging of the two. With respect to case definition, consideration of the diagnostics outlined in this paper could assist in better defining the assessment protocol, though testing modalities must continue to be updated as improved diagnostics are introduced and reported upon in the peer-reviewed literature.

22 KT Palmer et al, above n 8. 23 Health and Safety Executive, ‘Hand Arm Vibration (HAV) in Great Britain’. Accessed on 7 November 2011.

<http://www.hse.gov.uk/statistics/causdis/vibration/index.htm>. 24 Turcot et al, above n10. 25 J Paul Leigh and John A Robbins, ‘Occupational Disease and Workers’ Compensation: Coverage, Costs, and

Consequences’ (2004) 82 Milbank Quarterly 689.

SOCIAL SECURITY ADJUDICATION IN THE LIGHT OF INTERNATIONAL STANDARDS

THE NEED FOR REFORM IN SOUTHERN AFRICA

MARIUS OLIVIER*

I. INTRODUCTION A few years ago it was remarked that a single specialised adjudicating institution, let alone specialised courts, dealing with social security claims from all over the system appears to be generally absent in SADC (Southern Africa Development Community) countries.1 This stands in sharp contrast to labour law institutions in SADC countries – all over the Region these institutions, which might comprise a dedicated labour court and/or a tribunal-like arbitration institution have been created, in particular in recent years.2 In South Africa, for example, the position is that the present social security adjudication system is fragmented, with each piece of legislation providing for its own distinct appeal procedure.3 In particular, it has been questioned whether utilising the general court system as the apex institutional framework to finally determine social security disputes is appropriate, given the socio-economic context and indigent profiles of many of the social security claimants and appellants in Southern Africa.4 For these reasons, already in 2002, the Cabinet-appointed Committee of Inquiry into a Comprehensive System of Social Security for South Africa proposed that a uniform adjudication system be established to deal conclusively with all social security claims.5

This contribution therefore reflects on the need for reform of social security adjudication systems in SADC.6 This it does from a standardised perspective, relying essentially on the international standards framework applicable to this context. These standards emanate partly from social security-specific instruments (in particular certain International Labour Organisation (ILO) Conventions and Recommendations) and partly from other human rights instruments developed in the United Nations (UN), European, Africa Union and SADC contexts, and have been interpreted by expert and/or judicial bodies tasked with supervising compliance with the said standards. In addition, from a domestic law perspective, constitutional provisions may also impact on the reform debate. Therefore, mention will be made of the role and impact of some of these provisions in selected SADC countries. Provisions relating to social security and to access to courts (and tribunals) will be considered in this regard.

* Adjunct-Professor, Faculty of Law, University of Western Australia, Perth, Australia; Extraordinary Professor,

Faculty of Law, Northwest University, Potchefstroom, South Africa; Director: International Institute for Social Law and Policy (IISLP).

1 SADC has 15 member countries: Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

2 MP Olivier, ‘Developing an Integrated and Inclusive Framework for Social Protection in SADC: A Rights-Based Perspective’ in MP Olivier and ER Kalula (eds), Social Protection in SADC: Developing an Integrated and Inclusive Framework (Centre for International and Comparative Labour and Social Security Law (CICLASS) and Institute of Development and Labour Law, 2004) 21, 43.

3 MP Olivier, L Jansen van Rensburg and LG Mpedi, ‘Adjudication and Enforcement of Social security; Reviews and Appeals’ in MP Olivier et al (eds) Introduction to Social Security (LexisNexis Butterworths 2004) 503. The authors state at 525:

The system which currently provides for complaints and appeals against negative decisions taken by social security providers (mostly public institutions and/or officials) is riddled with problems: there is little consistency, as different bodies or officials are called upon to hear complaints and appeals in respect of different parts of the social security system, undue delays are common and the power of the courts to deal with these matters is unsatisfactory.

4 Ibid at 525-26; MP Olivier, ‘Developing an integrated and inclusive framework for social protection in SADC’, above n 2, 43-44. See also Part V below.

5 Government of South Africa, Transforming the Present – Protecting the Future Consolidated Report: Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (2002) 124.

6 The focus of the contribution is on the public social security framework, although some comparison with the private social security environment will be made.


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The next part of the contribution discusses core elements of reforms which are required, with particular reference to the need to:

• Introduce an institutional and structural separation as regards social security claims and appeals;

• Guarantee access to courts or to independent and impartial tribunals to determine social security appeals; and

• Ensure due process, from the perspective of reasonable timeframes for the lodgement of complaints and appeal; expeditious (rapid) resolution of disputes and simple procedures; a fair hearing and procedural equality; appearance, representation and legal aid; and effective remedies and enforcement.

In the final part of the contribution, some high-level conclusions and recommendations for reform of the current framework are made.

II. CURRENT FRAMEWORK

A. Constitutional reflections Provision made in SADC constitutions relating to access to justice may assist in the reform of SADC social security adjudication frameworks. This flows partly from the emphasis placed in some of the constitutions on and formulation used in relation to the right to access to courts,7 to a court or an independent and impartial tribunal,8 to a fair trial or hearing,9 or to secure protection of law.10 In addition, it could be argued that the constitutional protection afforded to the right to social security implicitly suggests that this right should be undergirded by an appropriate adjudication regime: without this there will be no meaningful expression of a constitutionally guaranteed right to (access to) social security. In fact, from a more general perspective it has been recognised that this right, embedded in the South African Constitution11 and some other SADC

7 Art 82 of the Constitution of Mozambique (1990): ‘All citizens shall have the right of recourse to the courts

against any act which violates their rights recognized by the Constitution and the law.’ Arts 107A & 107B of the Constitution of the United Republic of Tanzania (1977) stipulate that the courts shall be impartial and independent and shall ‘dispense justice without being tied up with technicalities [sic] provisions which may obstruct dispensation of justice’ (art 107A(2)(e)). See also art 29(1) of the Constitution of the Republic of Angola (2010).

8 Art 34 of the Constitution of the Republic of South Africa 108 of 1996: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’ See also sect 41(2) of the Constitution of the Republic of Malawi (1994).

9 Art 12(1)(a) of the Namibian Constitution (1990): ‘In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.’; sect 12(8) of the Constitution of the Kingdom of Lesotho (1993): ‘Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority … the case shall be given a fair hearing within reasonable time.’ For the same or similar formulation, see sect 21(10) of the Constitution of the Kingdom of Swaziland (2005) and art 19(1) of the Constitution of the Republic of Seychelles (1993), and art 29(4) & (5), as well as art 72 of the Angolan Constitution.

10 Art 18(9) of the Constitution of Zimbabwe (1980) (as amended): ‘Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.’ Similarly, sect 10(8) of the Constitution of Mauritius (1968): ‘Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.’ For similar provisions, see sect 10(9) of the Constitution of Botswana (1966) and art 18(9) of the Constitution of the Republic of Zambia (1991).

11 Constitution of the Republic of South Africa Act, 108 of 1996, sect 27(1)(c) provides: ‘Everyone has the right to have access … to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.’


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constitutions,12 but less explicitly so in the case of most of the SADC constitutions,13 implies certain procedural guarantees, which could be of relevance for the adjudication debate, too.14 This protection must also be read in the light of the constitutional requirement, contained in a number of constitutions in SADC,15 that administrative action must be just. Just administrative action is applicable not only to the decisions, conduct and actions of social security institutions, which are subject to review or appeal, but also to tribunals themselves, as they would generally be regarded as quasi-judicial institutions and not as courts of law.

The constitutional framework in SADC, relating to access to justice and the (right to) social security therefore provides a broad, principled basis for the application of social security adjudication principles, despite the terse provisions to this effect. This is strengthened by the provisions in these constitutions which allow international law norms and standards, also in relation to access to justice and social security adjudication, to be applied.16

B. Statutory Framework: A Mixed Picture In undertaking an analysis of social security dispute resolution and specifically the adjudication of social security appeals in SADC countries, a chequered picture is revealed: a) In some countries no statutory provision has been made for social security adjudication in

respect of decisions taken by the mainstream social security institution, neither at the internal level (i.e. the level of the institution itself) nor at the level of an independent appeal mechanism;17

b) In other countries, however, recent developments have seen, or do foresee, the adoption of framework provisions in social security laws, in essence providing for the establishment of in particular a dedicated social security appeal institution meant to deal conclusively18 with disputes emanating from the whole of the public social security,19 and at times (also) the private social security environment;20

12 Art 37 of the Seychelles Constitution similarly provides for the right to social security, while art 77 of the

Constitution of Angola grants health and social protection as fundamental rights; related protection to the elderly and disabled is provided for in arts 82 and 83.

13 In some SADC country constitutions the constitutional reference is of a generalised nature, and does not create directly enforceable social security or broader social protection rights. For example, sect 30 the Malawian Constitution (1994) makes provision for a right to development and a corresponding duty on the State to ensure equality of opportunity as far as access to basic resources, education, health services, food, shelter, employment and infrastructure are concerned. Section 13, on the other hand, contains as one of the enumerated principles of national policy the obligation on government to promote the welfare and development of the people of Malawi. These goals may be taken into account by courts when interpreting the Constitution and other laws, or determining the validity of decisions of the executive. The Constitution of Zambia poses yet another example of provisions which extend protection not in the nature of enforceable rights. Under the (non-justiciable) principles of state in sect 112 the state will endeavour to provide social protection-related rights to its citizens subject to the ability of resources. For a similar non-binding reference to social protection/welfare rights, see sect 60(5) of the Swaziland Constitution and art 95 of the Namibian Constitution. In some of the SADC constitutions, a general right to welfare/social security is not provided for; instead, the relevant constitutions would merely protect subsets of such a broader right, such as the right to medical or health care and/or to old age assistance – see among others the Mozambican and Lesotho constitutions. In Tanzania, social rights, including the right to education, to social welfare and to just remuneration, are specifically protected in the Constitution: see sects 11 and 23 of the Tanzanian Constitution.

14 Cf Sikutshwa v MEC for Social Development, Eastern Cape Province and Others [2005] ZAECHC 18; 2009 (3) SA 47 (TkH) [81]: ‘The Applicant, like so many grant applicants is in dire circumstances. Whether he is entitled to social assistance or not, I cannot say. But he is certainly entitled to be treated with dignity and respect, and he is entitled to be informed of the reasons for the decision not to approve his grant application. He ought to have been given those reasons on request.’

15 See among others sect 33 of both the South African and Swaziland constitutions; sect 43 of the Malawi Constitution.

16 See Part IIIB1 below. 17 E.g., Swaziland and Zambia: neither the Swaziland National Provident Fund Order, 1974 nor the National Social

Security Authority Act 12 of 1989 (Zambia) (concerning the National Pension Scheme Authority – NAPSA) explicitly provides for social security dispute resolution. See also International Labour Organization [ILO], Social security and the rule of law (General Survey concerning social security instruments in light of the 2008 Declaration on Social Justice for a Fair Globalization) (Report of the Committee of Experts on the Application of Conventions and Recommendations to the International Labour Conference, 100th Session, 2011- Report III (Part 1B)) (2011) [409].

18 Subject, of course, to judicial review of the appeal institution's decisions.


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c) Social security laws in certain SADC countries regulate to some extent social security adjudication by external institutions, also at the appeal level, in relation to specific social security schemes,21 but not all social security schemes or all social security disputes;22

d) Labour law dispute resolution institutions are often tasked with social security adjudication – this is the result of the phenomenon that certain social security contingencies, notably sickness, occupational injuries and diseases, and maternity, are due to the absence of comprehensive social security schemes of a public nature, in many SADC countries provided for on the basis of employer liability, and consequently incorporated in the labour law frameworks of these countries;23 and

e) To the extent that a dedicated appeal institution is not indicated, social security disputes are determined by the civil courts in the respective countries, usually on the basis of judicial review – however, for reasons discussed below,24 this is in the absence of prior consideration by a dedicated appeal institution problematic, especially in the SADC context.

C. Regional Context While some provision is made in SADC instruments concerning the adjudication of social security disputes at national level, the basis for intervention at a regional level is weak and, if political responses to jurisprudential activity thus far would serve as a yardstick, essentially ineffective. Only one SADC instrument, albeit of a non-binding nature, namely the Code on Social Security in the SADC (2007), makes explicit provision for social security adjudication, but then only at national level.25 At regional level, the Code foresees the establishment of an Independent Committee of Experts to monitor compliance with the Code.26 The other major instrument, in the absence of a binding Protocol,27 relating to social security rights, namely the Charter of Fundamental Social Rights in SADC (2003),28 is effectively a promotional instrument and does not, as such, regulate adjudication as a dispute-resolving mechanism. The foundational SADC instrument, the Treaty itself,29 containing at best indirect references to social security,30 19 Notably Tanzania and South Africa. The Social Security (Regulatory Authority) Act 8 of 2008 (Tanzania)

stipulates that decisions by underlying social security institutions may be reviewed by the Authority; a further appeal against the decision of the Authority lies to the envisaged Social Security Disputes Settlement Tribunal: see sects 43-46. In South Africa, in view of a long-recognised need (see n 5 above, and the accompanying text), the South African government has taken steps to develop a policy that will inform the establishment of a uniform social security adjudication system: see MP Olivier, A Govindjee and M Nyenti, Policy: Developing a policy framework for the South African social security adjudication system, prepared for the Department of Social Development, South Africa, December 2011 (on file with the author).

20 The Pension Scheme Regulation Act 28 of 1996 (Zambia) empowers the relevant Minister to make regulations that will provide for the form and manner of appeals in relation to pension schemes other than the mainstream NAPSA scheme: see s 46(2).

21 For example, (i) Zimbabwe: see sects 35-37 of the National Social Security Authority Act 12 of 1989; (ii) Namibia: sect 45 of the Social Security Act 34 of 1994; (iii) Mauritius: sects 34A & 36 of the National Pensions Act 44 of 1976; and (iv) South Africa: sect 18 of the Social Assistance Act (SAA) 13 of 2004; sects 91(3)(a) & (b) and (5) of the Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993.

22 For example, sect 10 of the Social Welfare Assistance Act 10 of 1988 (Zimbabwe) provides for an appeal (in social assistance matters) to the relevant Minister; sect 37 of the Unemployment Insurance Act (UIA) 63 of 2001 (South Africa) indicates a Board-appointed National Appeals Committee as the appeal institution.

23 For example, Lesotho, Malawi and Swaziland. See also sect 77(3) of the Basic Conditions of Employment Act 75 of 1997 (South Africa).

24 Part V. 25 Art 21.1(b) of the code on Social Security in the SADC: see Part IIIB below. 26 Article 21.3 of the Code. 27 The definition of ‘Protocol’ in article 1 of the Treaty refers to a Protocol as an instrument of implementation of

the Treaty, having the same legal force as the Treaty. Currently, there is no Protocol explicitly regulating social security. However, an unpublished version of a draft Protocol on Employment and Labour, which also covers social security standards, is already in existence. See also n 29 below.

28 Charter of Fundamental Social Rights in SADC (2003) <http://www.sadc-tribunal.org/docs/CharterFundamentalSocialRights.pdf> .

29 Consolidated Text of the Treaty of the Southern African Development Community (1992), as amended, available on <http://www.sadc.int/english/key-documents/declaration-and-treaty-of-sadc/>. The Treaty, as is the case with its antecedent Protocols, is a legally binding document providing an all-encompassing framework, by which countries of the region shall co-ordinate, harmonise and rationalise their policies and strategies for sustainable development in all areas of human endeavour.


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potentially has relevance in two respects – the establishment of31 and powers accorded the SADC Tribunal in both the Treaty32 and the Tribunal Protocol,33 and the (limited) reference in the Treaty to the role and relevance of international law.34

However, in essentially two areas – namely implementation and enforcement – problems have arisen. As far as implementation is concerned, it is required of SADC Member States to accord the SADC Treaty the force of law in their respective legal systems,35 and to take all necessary steps to ensure the universal application of the Treaty.36 However, SADC member states have generally failed to transpose the provisions of the Treaty and the Tribunal Protocol in their own legal systems. In the area of enforcement the SADC Tribunal has, despite progressive jurisprudential interpretation and pronouncements impacting in particular on access to justice,37 proved to be an ineffective institution. In particular, the failure on the part of SADC to act against Zimbabwe for non-compliance with the Tribunal's decisions has revealed the weakness of SADC's enforcement mechanisms.38 As noted by Erasmus:

The Zimbabwe saga and that country's failure to comply with the SADC Tribunal’s rulings on its human rights violations have revealed the weakness in this arrangement. The Summit was not prepared to act against Zimbabwe; instead, it decided to appoint a consultant to investigate the jurisdiction and terms of reference of the Tribunal. In the meantime, until the results are known, the functioning of the Tribunal has been suspended and the terms of the Judges (Members) have not been renewed.39

SADC legal instruments therefore, in particular via the Code on Social Security, provide an important but limited framework for social security adjudication at the national level, while regional level interventions, though supported by a broad-based Treaty and Protocol framework

30 Ibid. The objectives of SADC include, according to art 5: the promotion of ‘sustainable and equitable economic

growth and socio-economic development that will ensure poverty alleviation with the ultimate objective of its eradication, enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration’ (art 5(1)(a)), and ensuring that ‘poverty eradication is addressed in all SADC activities and programmes’ (art 5(1)(j)). ‘Human resources development’ and ‘social welfare’ are specifically mentioned as areas on which SADC member states agreed to co-operate with a view to foster regional development and integration, and in respect of which the member states undertook, through appropriate institutions of SADC, to coordinate, rationalise and harmonise their overall macro-economic and sectoral policies and strategies, programmes and projects — art 21, which enjoins Member States to cooperate with each other in the attainment of the organisation's objectives (see in particular art 21(1)).

31 According to art 9(1)(g), the Tribunal is established as one of the institutions of SADC. The establishment of the Tribunal was formally given effect to via the provisions of the Protocol on Tribunal and Rules of Procedure Thereof (2000): see <http://www.sadc.int/english/key-documents/protocols/protocol-on-tribunal-and-the-rules-of-procedure-thereof/>.

32 Art 16(1) of the SADC Treaty stipulates that the Tribunal ‘shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it’, while art 16(5) provides that the ‘decisions of the Tribunal shall be final and binding’.

33 The Protocol, said to form an integral part of the Treaty, notwithstanding the provisions of Article 22 of the Treaty (see art 16(2) of the Treaty), provides as follows (see art 14 of the Tribunal Protocol): ‘The Tribunal shall have jurisdiction over all disputes and all applications referred to it in accordance with the Treaty and this Protocol which relate to: (a) the interpretation and application of the Treaty; (b) the interpretation, application or validity of the Protocols, all subsidiary instruments adopted within the framework of the Community, and acts of the institutions of the Community; (c) all matters specifically provided for in any other agreements that States may conclude among themselves or within the community and which confer jurisdiction on the Tribunal.’

34 See Part IIIA1 in this regard. 35 SADC Treaty, art 6(5). 36 SADC Treaty, art 6(4). 37 See Part IIIB1 below. 38 The Treaty provides for sanctions against members that ‘persistently fail, without good reason, to fulfil

obligations assumed under this Treaty’, or when they ‘implement policies which undermine the principles and objectives of SADC’ (SADC Treaty, art 33(1)). See Gerhard Erasmus ‘Is the SADC Trade Regime a Rules-Based System?’ (2011) 1 SADC Law Journal 17, 30: ‘However, there is no political will to enforce the provisions on sanctions against members who violate their obligations under the Treaty. The Summit consists of the Heads of State or Government, and is SADC's supreme policymaking institution. However, unless provided otherwise in the Treaty, Summit decisions are taken by consensus, giving the member in violation of its obligations a veto over any sanctions. This is a major flaw in the system.’

39 Erasmus, above n 38, 29.


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and the jurisprudence of the now-suspended SADC Tribunal, have thus far proved to be largely ineffective.

III. INTERNATIONAL STANDARDS IMPACTING ON SOCIAL SECURITY ADJUDICATION

A. Domestic And SADC Law Relevance Of International And Regional Standards

1. Constitutional, statutory and regional reflections Constitutional and statutory context In the search for an appropriate benchmark for the establishment of an appropriate social security appeal mechanism in Southern African jurisdictions, it is important to take into account international and regional standards. The extent to which these standards can be applied, or considered, depends largely, in the first place, on SADC constitutional provisions in relation to the incorporation and implementation of international law and, secondly, ratification of relevant instruments by the countries concerned.

Constitutions in the region invariably make provision for the role of international law,40 and generally adopt an international law-friendly approach.41 These Constitutions also at times foresee that international law plays a significant role as regards the interpretation of the relevant constitutional rights (including rights relating to access to justice and to social security) and the supporting legislative framework.42 In the South African context, this has been held to include both binding and non-binding public international law.43 Sometimes, SADC constitutions further provide for relatively uncomplicated mechanisms for the application of international law. The Constitution of Malawi recognises both incorporation and transformation as legitimate methods of deriving domestic effects from the state's international obligations.44 This is also true for Namibia.45 However, in other cases, for example South Africa46 and Zimbabwe47, statutory incorporation of the relevant international standards is as a rule required, before the international agreement becomes law.

There is a tendency in the region for labour law48 and social security statutory instruments to include references to international law – in particular in relation to the interpretation of relevant

40 See, among others, sect 211 of the Malawi Constitution; sect 231-233 of the South African Constitution; sect

238(2) of the Swaziland Constitution; art 62(2) of the Constitution of the Republic of Mozambique (1990); art 13(1) & (2) of the Constitution of Angola; art 144 of the Constitution of Namibia; art 111B of the Constitution of Zimbabwe; art 64(4) & 5) of the Constitution of Seychelles.

41 For example, sect 233 of the South African Constitution provides that ‘… When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.’ See further sect 236(1)(d) of the Swaziland Constitution; sects 13(k) and 44(2) of the Malawi Constitution; art 62(2) of the Mozambique Constitution; art 12(1) of the Angolan Constitution; sect 15(3)(b) of the Constitution of Mauritius; arts 95(d) and 96 of the Namibian Constitution; arts 108B(5)(f) & 108B(6) of the Constitution of Zimbabwe; art 48 of the Seychelles Constitution.

42 See sect 11(2) of the Malawi Constitution and art 48 of the Seychelles Constitution; sect 39(1)(b) of the South African Constitution, which stipulates that a court, tribunal or forum must, when interpreting the Bill of Rights, consider international law.

43 S v Makwanyane 1995 3 SA 391 (CC) [35]; Government of RSA v Grootboom 2000 11 BCLR 1169 (CC) [26]. For examples of reliance on a non-binding ILO Convention, see Sidumo v Rustenburg Platinum Mines Ltd (Rustenburg Section) 2008 2 SA 24 (CC) [61] and Karras t/a Floraline v SA Scooter & Transport Allied Workers Union 2000 21 ILJ 2612 (LAC) [27].

44 In respect of treaties, for example, sect 211(1) of the Constitution of Malawi provides that: ‘Any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement.’

45 Art 144 of the Constitution of Namibia: ‘Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.’

46 Sect 231(4) of the South African Constitution. 47 Sect 111B(1)(b) of the Zimbabwean Constitution. 48 It has to be noted that the labour law adjudication frameworks provided for in these statutes would also apply to

these very areas of social security. See n 23 above and the accompanying text.


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statutory provisions.49 Especially in those countries where the Constitution and/or the relevant labour and social security law(s) provide for an international law-friendly approach, court judgments would reflect this particular approach. For example, in South Africa the courts have not hesitated to invoke the provisions of international instruments when interpreting fundamental rights, including those rights which have a socio-economic character.50 This also appears to be the case in Lesotho.51

Regional framework Regional instruments at the SADC level impacting on social security also promote the adoption of international standards, thereby setting a benchmark for member countries to follow. Article 3(1) of The Charter of Fundamental Social Rights in SADC (the Social Charter)52 sets the human rights-sensitive baseline.53 Furthermore, in addition to referring in many of its particular provisions to the specific relevant ILO norms, the Charter imposes on Member States to do the following in order to attain the objectives of the Charter:54

a) Establish a priority list of ILO Conventions; b) Take appropriate action to ratify and implement relevant ILO instruments; and c) Establish regional mechanisms to assist Member States in complying with the ILO

reporting system.

Similarly, the Code on Social Security in the SADC55 often56 refers to specific ILO standards in particular social security areas and requires specifically of every Member State to maintain ’its social security system at a satisfactory level at least equal to that required for ratification of International Labour Organisation (ILO) Convention Concerning Minimum Standards of Social Security No. 102 of 1952’.57 As indicated below, Convention 102 contains important core provisions on social security complaints and appeals.

An international law-friendly and human rights-sensitive approach is also apparent from the provisions of the SADC Treaty itself, even though the Treaty does not contain, or incorporate, an enumerated list of fundamental rights. The Preamble of the Treaty58 states in part that:

MINDFUL of the need to involve the people of the Region centrally in the process of development and integration, particularly through the guarantee of democratic rights, observance of human rights and the rule of law ...

Furthermore, article 4(c) stipulates that Member States shall act in accordance with the principles of human rights, democracy and the rule of law. The now-suspended SADC Tribunal held that

49 E.g., sect 4(c) of the Lesotho Labour Code; sect 3(c) (see also section 1(c)) of the South African Labour Relations

Act (LRA) (66 of 1995); sect 3(d) of the Employment Equity Act (EEA) 55 of 1998 and sect 2(b) of the Basic Conditions of Employment Act (BCEA) 75 of 1997; as well as the preambles of the LRA, BCEA and EEA.

50 See in particular Government of the Republic of South Africa v Grootboom 2000 11 BCLR 1169 (CC): the court referred extensively to international law instruments, especially the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the General Comments of the Committee on Economic, Social and Cultural Rights (UNCESCR) for purposes of interpreting certain fundamental rights and the manner in which the courts are prepared to enforce socio-economic rights.

51 Cf the Labour Court case of Labour Commissioner v HWV LC/144/95. 52 Of 2003. See <http://www.sadc.int>. 53 Art 3.1 ‘This Charter embodies the recognition by governments, employers and workers in the Region of the

universality and indivisibility of basic human rights proclaimed in instruments such as the United Nations Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples' Rights, the Constitution of the ILO, the Philadelphia Declaration and other relevant international instruments’.

54 Art 5. 55 Of 2007. 56 For example, in relation to maternity rights, art 8.1 of the Code stipulates that: ‘Member States should ensure that

women are not discriminated against or dismissed on grounds of maternity and that they enjoy the protection provided for in the ILO Maternity Protection (Revised) Convention No. 183 of 2000.’ See also arts 12.4 and 16.2 of the Code.

57 Art 4.3. 58 The Preamble contains a rather unspecific reference to international law, presumably aimed at characterising the

(international) nature of the relationship between the member states themselves – this characterisation also appears from other provisions of the Treaty. The provision reads: ‘BEARING IN MIND the principles of international law governing relations between States ...’.


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the absence of human rights-specific entitlements and stipulations in the Treaty did not prevent the Tribunal from applying human rights approaches. In fact, so the Tribunal held, the very provisions of article 21(b) of the Tribunal Protocol allowed it to have regard to ‘applicable treaties, general principles and rules of public international law’. On the basis of this approach, the Tribunal among others held that the Zimbabwe programme of enforced land acquisition without compensation constituted an infringement of an individual's entitlement to access to justice and to an effective remedy, and is racially discriminatory.59 In the process of addressing in particular access to justice issues, the Tribunal did not hesitate to invoke and apply provisions of a range of international and regional human rights-based instruments, as well as comparative jurisprudence in relation to human rights.60 In so doing, the Tribunal comprehensively referred to and relied on a range of international,61 Africa-continental62 and -regional instruments, as well as comparable human rights case law and commentary (and scientific contributions)63 emanating from (continental,64 regional and national65) Africa and other international,66 regional67 and national68 adjudicating institutions, from the international sphere beyond Africa. In short then, the

59 See in particular Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007; Gondo v Republic of

Zimbabwe SADC T 5/2008; Tembani v Republic of Zimbabwe SADC T 7/2008. See also the initial judgment of Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 3-4.

60 The Tribunal embarked upon this route despite the fact that it did not have specific human rights jurisdiction emanating from the SADC Treaty itself. In so doing, it followed the approach adopted by the East African Court of Justice, which operates under a similarly restricted framework: see Katabazi v Secretary General of the East African Community and the Attorney General of the Republic of Uganda [2007] EACJ 3 (1 November 2007); see also Tazorora TG Musarurwa, ‘Human Rights, SADC and the SADC Tribunal’ (2010) 1 SADC Tribunal Review 9, 11.

61 In particular - • UN instruments, such as the UN Declaration on the Human Rights of Individuals Who Are Not Nationals of

the Country in which They Live, Resolution 40/144 (1985), the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (see The United Republic of Tanzania v Cimexpan (Mauritius) & others SADC T 1/2009, 7-8); the UN Charter and the UN Universal Declaration of Human Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 45-46), the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Racial Discrimination (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 45-46, 47-49; Gondo v Republic of Zimbabwe SADC T 5/2008, 11; Tembani v Republic of Zimbabwe SADC T 7/2008, 5);

• Other international instruments, such as the Vienna Declaration and Programme of Action (Gondo v Republic of Zimbabwe SADC T 5/2008; Tembani v Republic of Zimbabwe SADC T 7/2008, 5-6);

• European instruments, such as the European Convention on Human Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, p 19; Gondo v Republic of Zimbabwe SADC T 5/2008, 6); and

• In one case involving the withdrawal of an appointment of a prospective employee of the SADC Secretariat, the Tribunal considered the applicability of ILO Convention 158 of 1982, on Termination of Employment: Mtingwi v SADC Secretariat SADC T 1/2007 (the Tribunal held the Convention to be inapplicable to prospective employees).

62 In particular, the African Charter on Human and People's Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 20, 30-31, 47; Gondo v Republic of Zimbabwe SADC T 5/2008, 7-8).

63 E.g. international law handbooks by South African and American scholars – see The United Republic of Tanzania v Cimexpan (Mauritius) & others SADC T 1/2009, 6-8; Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 25, 27.

64 In particular, the African Commission on Human and People's Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 31-33; Gondo v Republic of Zimbabwe SADC T 5/2008.

65 In particular, judgments handed down by the South African Constitutional Court and other High Court divisions (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 34-35; Gondo v Republic of Zimbabwe SADC T 5/2008; Tembani v Republic of Zimbabwe SADC T 7/2008, 15-16, 18).

66 For example, the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 49-51; Gondo v Republic of Zimbabwe SADC T 5/2008; Tembani v Republic of Zimbabwe SADC T 7/2008, 11-12).

67 E.g., case law emanating from the American Commission (see The United Republic of Tanzania v Cimexpan (Mauritius) & others SADC T 1/2009, 8), the Inter-American Court of Human Rights (Gondo v Republic of Zimbabwe SADC T 5/2008, 14; Tembani v Republic of Zimbabwe SADC T 7/2008, 6-7); the European Court of Human Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 28; Gondo v Republic of Zimbabwe SADC T 5/2008; Tembani v Republic of Zimbabwe SADC T 7/2008, 6), and the Inter-American Court of Human Rights (see Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 29-30).

68 Such as case law emanating from UK-based courts, including judgments from the Privy Council (see Kethusegile-Juru v The Southern African Development Community Forum SADCT T 2/2009; Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, pp 36-38; Tembani v Republic of Zimbabwe SADC T 7/2008, 19).


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human rights-abiding approach adopted by the Tribunal is clearly evident from the following statement appearing in one of the earlier Tribunal decisions:69

This means that SADC as a collectivity and as individual member States are under a legal obligation to respect and protect human rights of SADC citizens. They also have to ensure that there is democracy and the rule of law within the region.

In conclusion, while the two (non-binding) SADC instruments pertaining to social security make ample reference to the relevance of international law/standards, the few general provisions in this regard embedded in the SADC foundational instrument, namely the Treaty, and the even more explicit provisions of the Tribunal Protocol, have had little impact, as is the case with the interpretive jurisprudence of the SADC Tribunal. In fact, at the regional level, this has now led to the suspension of the Tribunal and the review of its jurisdiction and terms of reference. At the national level, the negative political and legal responses to the decisions of the Tribunal have culminated in a refusal to acknowledge Tribunal decisions and to further cooperate with the Tribunal.70 These responses have not been challenged by the Summit, the highest decision-making organ of SADC71 and have in fact prompted the decision by the Summit to order the said suspension and review. This state of affairs can at least partly be ascribed to the very legal nature and structure of SADC. While SADC is, unlike the European Union, not a supra-national institution, but has the character of an international organisation,72 its law-making and -implementation agenda is clearly premised on the sovereignty of the Member States, as is acknowledged in the SADC Treaty.73 This potentially limits the scope for the adoption and implementation/enforcement of adjudication principles, in particular in relation to access to justice in social security dispute resolution, from a regional perspective.

1. Ratifications SADC countries have generally failed to ratify post-World War II social security Conventions of the ILO, in particular those that contain provisions relating to social security adjudication, including Convention 102 of 1952 on Minimum Standards in Social Security.74 However, there has been a more extensive ratification of other international instruments, which among others provide for access to courts (and/or independent and impartial tribunals), such as the African (Banjul) Charter on Human and Peoples' Rights,75 the UN International Covenant on Civil and Political Rights (ICCPR),76 the International Convention on the Elimination of All Forms of

69 See the initial judgment of Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 3-4. 70 See Fick and others v The Republic of Zimbabwe SADC T 01/2010, 3-4. In Gramara (Pvt) Ltd and Another v

Government of the Republic of Zimbabwe and others (HC 33/09) [2010] ZWHHC 1 (26 January 2010) the High Court of Zimbabwe, while acknowledging the binding nature of Tribunal decisions at international level, nevertheless refused to register and enforce a previous decision of the Tribunal on the basis of domestic legal (in particular constitutional) and policy considerations: ‘In the result, having regard to the foregoing considerations and the overwhelmingly negative impact of the Tribunal's decision on domestic law and agrarian reform in Zimbabwe, and notwithstanding the international obligations of the Government, I am amply satisfied that the registration and consequent enforcement of that judgment would be fundamentally contrary to the public policy of this country.’

71 The Summit comprises of all SADC Heads of State and/or Government. As the ultimate policy-making institution of SADC, it is responsible for the overall policy direction and control of functions of the Community. See art 10 of the SADC Treaty.

72 See article 3(1) of the SADC Treaty. 73 Article 4(a) of the SADC Treaty embeds the principle of the ‘sovereign equality of all Member States’. This is the

position despite the fact that SADC, like several other African regional communities, has decided to become a custom union and even a common market. As noted by Erasmus, above n 38, 22: ‘The East African Community (EAC) and the Common Market for Eastern and Southern Africa (COMESA) are said to be customs unions already. SADC wanted to become a customs union in 2010, but postponed the decision at the eleventh hour.’

74 This Convention has only been ratified (in part) by the DRC – information obtained from the ILO Website <http://www.ilo.org/ilolex/english/newratframeE.htm>.

75 Adopted in 1981; entered into force 1986. The Charter has been ratified by all 53 AU member states, including all SADC countries: <http://www.achpr.org/english/ratifications/ratification_african%20charter.pdf>.

76 Adopted in 1966; entered into force 1976. The Covenant has been ratified by all SADC countries: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>.


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Racial Discrimination (CERD),77 UN Convention on the Rights of the Child (CRC) of 199378 and the Convention on the Elimination of Discrimination against Women (CEDAW).79 Although not directly dealing with social security rights, these ratified international instruments are nevertheless of importance as a yardstick to gauge SADC countries' compliance with international standards in relation to adjudication of disputes. However, the UN International Covenant on Economic, Social and Cultural Rights (ICESCR)80 does explicitly provide for the right of everyone to social security, including social insurance,81 to family- and maternity-related protection and assistance,82 and to the enjoyment of the highest attainable standard of physical and mental health.83 This important instrument has been ratified by 12 SADC member countries.84

It is not clear what all the reasons are for the non-ratification of in particular post-World War II social security ILO conventions by SADC Member States. This stands in sharp contrast to the ratification of all eight ILO labour law Conventions85 that make up the ILO Declaration on Fundamental Principles and Rights at Work of 1998. Whereas only 986 of the then 14 SADC countries had done so by early January 2003,87 all 15 SADC countries have now ratified all eight core Conventions.88 It may be that domestic systems are not yet in line with the requirements of, for example, Convention 102, despite the measure of in-built flexibility, which is characteristic of the Convention.89 The implication of the failure of ratifying this Convention and other social security Conventions of the ILO implies that a government is under no formal obligation to meet the minimum standards encapsulated in these instruments. And yet, it has to be noted that the current social security reform drive in countries such as Lesotho, Namibia, South Africa and Swaziland is largely informed by a desire to meet at least the minimum standards set in ILO Convention 102. Furthermore, to some extent the failure to ratify relevant ILO social security Conventions is ameliorated by the much improved ratification record of SADC countries in relation to other applicable international instruments, which also contain standards relevant to the adjudication of social security disputes.

B. Scope And Content Of Relevant International And Regional Standards: A Brief Conspectus

There are several ILO Conventions and Recommendations which are helpful in the search for appropriate standards for social security adjudication. Some of the ILO instruments where these standards are reflected include:

• Social Security (Minimum Standards) Convention (No 102 of 1952) • Employment Injury Benefits Convention (No 121 of 1964) 77 Adopted in 1966; entered into force 1969. The Convention has been ratified by all SADC countries, except

Angola: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en>. 78 Adopted in 1989; entered into force 1990. The Convention has been ratified by all SADC countries:

<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en>. 79 Adopted in 1979; entered into force 1981. The Convention has been ratified by all SADC countries:

<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>. 80 Adopted in 1966; entered into force 1976. 81 Art 9 ICESCR. 82 Art 10. 83 Art 12. 84 Botswana and Mozambique have not ratified the ICESCR; South Africa signed the instrument in 1994, and is yet

to ratify same: Information obtained from <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>.

85 I.e. the two Conventions on Forced Labour (Conventions 29 of 1930 and 105 of 1957), on Freedom of Association (87 of 1948 and 98 of 1949), on Discrimination (100 of 1951 and 111 of 1958) and on Child Labour (138 of 1973 and 182 of 1999).

86 I.e. Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Seychelles, South Africa, Swaziland and Tanzania.

87 Information obtained from the ILO Website <http://www.ilo.org> on 6 July 2007. 88 Ibid, on 31 January 2012. 89 For purposes of this contribution, within the context of Convention 102 two such flexibility arrangements need to

be mentioned. The first is to be found in art 3(1) of the Convention, which provides for a delay in complying with the full spectrum of the obligations under the Convention, on the basis of perceived difficulty in complying with certain provisions of the Convention. The second flexibility arrangement relates to the allowance made in the Convention for countries to accept obligations in respect of only three of the nine benefit categories provided for in the Convention: see art 2(a)(ii), read with art 2(b) for specific details.


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• Invalidity, Old-Age and Survivors' Benefits Convention (No 128 of 1967) • Medical Care and Sickness Benefits Convention (No 130 of 1969) • Maritime Labour Convention, 2006 • Employment Promotion and Protection against Unemployment Convention (No 168 of

1988) • Medical Care Recommendation (No 69 of 1944) • Income Security Recommendation (No 67 of 1944)

The applicable ILO standards and principles emanating from human rights instruments have recently been reflected on in a report compiled by a supervisory organ of the ILO, namely the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and submitted to the ILO Annual General Conference in Geneva in 2011.90 This provides a useful summary of the principles discussed in more detail below. The ILO report stresses that these standards and principles constitute important guarantees, emanate from international social security law, and form part of the State's duty to ensure the proper administration of social security institutions and services.91 It has to be stressed, though, that the explicit adjudication standards contained in the ILO Conventions are essentially minimal and do not, as such, given the specific formulation of the said standards, reflect all the principles which are now accepted as inherently and integrally attached to the adjudication of social security disputes and the broader notion of access to justice. It is therefore of interest to note that, as is reflected in its recent report, the CEACR, while acknowledging that a particular principle may not be embedded in ILO standards,92 has at times given an extensive interpretation of a particular standard, as far as a particular Convention is concerned.93 Furthermore, the CEACR has also relied on at least another overarching ILO standard, not specific to the adjudication of social security disputes, to infer rights and obligations in the area of social security adjudication – in particular, the right to have a recourse duly examined. Within the context of the right to a fair trial and with reference to the ‘general responsibility of the State to guarantee the proper administration of social security and services’,94 the CEACR concluded,

... The right to have a recourse duly examined has been considered by the Committee of Experts as falling under the general responsibility of the State to guarantee the proper administration of social security institutions and services. Any dysfunctions in social security recourse procedures therefore have to be duly addressed by the State in conformity with the principles guaranteed by international social security law....

Also, SADC has adopted social security adjudication standards similar to those contained in ILO and international human rights instruments. Article 21.1(b) of the Code on Social Security in the SADC (2007) stipulates that

[SADC] Member States should endeavour to establish proper administrative and regulatory frameworks in order to ensure effective and efficient delivery of social security benefits, in particular … easy access for everyone to independent adjudication institutions that have the power to finally determine social security disputes, inexpensively, expeditiously and with a minimum of legal formalities. (emphasis added)

Specific standards and norms relating to access to justice and the rule of law, with reference to the adjudication of disputes, were also set by the currently suspended SADC Tribunal. In Gondo v 90 ILO Social security and the rule of law, above n 17. 91 Ibid, [433, 438]. 92 E.g., the length of the period which should be available to the claimant to lodge a complaint: the CEACR is of the

opinion that such period should be of a reasonable duration – see ILO Social security and the rule of law, above n 17, [418].

93 For example, the right of appeal provision embedded in ILO Convention 102 of 1952 (see art 70 [1]), has been interpreted to imply the resolution of the dispute by a body which is independent of the administrative authority which in the first place took the decision; a review by the decision-taking authority would not satisfy the requirements of an appeal. Furthermore, according to the CEACR, if special appeal procedures are not available, access to the ordinary courts should be ensured: see ILO Social security and the rule of law, above n 17, [418].

94 This responsibility is evident from the framework and orientation of ILO Convention 102 of 1952. Also, art 28 of Convention 168 explicitly provides: ‘Each Member shall assume general responsibility for the sound administration of the institutions and services entrusted with the application of the Convention.’


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Republic of Zimbabwe95 the Tribunal formulated the general requirements of the rule of law as follows:

It is settled law that the concept of the rule of law embraces at least four fundamental rights, namely, the right to have an effective remedy, the right to have access to an independent and impartial Court or tribunal, the right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation, the right to equality before the law and the right to equal protection of the law.

These and other entitlements, as far as they relate to access to justice, were commented on in detail in several of the Tribunal decisions, and can be summarised:

a) Domestic remedies must be exhausted first;96 however, this is not required if the very domestic remedy is non-existent of has been removed by the national legislature;97

b) A claimant/appellant is entitled to an opportunity to make representations before an independent and impartial body,98 and is entitled to equality before the law;99

c) The available remedies should be effective in law and practice, provide real redress, and include the payment of a judgment debt;100

d) Damages should constitute fair compensation,101 and include both pecuniary loss and moral damages;102 and

e) In the case of the Tribunal, as an exceptional arrangement, a cost order could be made against an un-cooperative government or another institution;103 this could be linked to an order of contempt of the Tribunal.104

Other international instruments, some of which have been ratified by a range of SADC countries, contain provisions pertinent to the adjudication of appeals.105 These instruments are therefore important for the discussion on determining social security appeals. From the African (continental) perspective, the African (Banjul) Charter of Human and Peoples' Rights states that every individual has the right to have his cause heard106 – which includes the right to an appeal to competent national organs; the right to defend oneself, including the right to be defended by counsel of one's choice; and the right to be tried within a reasonable time by an impartial court or tribunal. In addition, the Charter provides for the enactment of protocols, including the Kigali107 and Grand Bay, Mauritius108 Declarations, as well as guidelines to supplement Charter rights.109

95 SADC T 5/2008, 4. 96 The United Republic of Tanzania v Cimexpan (Mauritius) & others SADC T 1/2009, 5-6. This applies also to

proceedings before the Tribunal. Article 15(2) of the Tribunal Protocol stipulates: ‘No natural or legal person shall bring an action against a State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.’

97 Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 19-23; Kethusegile-Juru v The Southern African Development Community Forum SADCT T 2/2009, 3.

98 Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 26-41; Kethusegile-Juru v The Southern African Development Community Forum SADCT T 2/2009, pp 5-6; Tembani v Republic of Zimbabwe SADC T 7/2008, 19-20; Gondo v Republic of Zimbabwe SADC T 5/2008, 8, 11-14.

99 Ibid, 11-14. 100 Ibid, 7. 101 Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 2/2007, 54-56. 102 Kethusegile-Juru v The Southern African Development Community Forum SADCT T 2/2009, 6-7. 103 Tembani v Republic of Zimbabwe SADC T 7/2008, pp 22-24; Gondo v Republic of Zimbabwe SADC T 5/2008, 8,

16-17; Kethusegile-Juru v The Southern African Development Community Forum SADCT T 2/2009, 7-8. 104 Fick and others v The Republic of Zimbabwe SADC T 01/2010; Campbell (Pvt) Ltd v Government of Zimbabwe

SADC T 3/2000; Campbell (Pvt) Ltd v Government of Zimbabwe SADC T 11/2008. 105 See M Nyenti, M Olivier and A Govindjee, ‘Reforming the South African social security adjudication system: the

role and impact of international and regional standards’, Presentation at an International Conference on the ‘Interaction between International, Regional and National Labour Law and Social Security: Standards and Methods’, Stellenbosch, South Africa, 13-14 October 2011, [3] (on file with the author; see also Powerpoint presentation available online at <http://www.iislp.net.au/index.php/papers/conference2011presentations>).

106 Art 7 – in particular art 7(a), (c) and (d). 107 Declaration of the 1st African Union (AU) Ministerial Conference on Human Rights (8 May 2003) (Kigali,

Rwanda). 108 Declaration and Plan of Action of the First OAU Ministerial Conference on Human Rights (12-16 April, 1999)

(Grand Bay, Mauritius).


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These continental instruments contain stipulations on the need to guarantee independence, accessibility and affordability of African judicial systems110 and on the right to a fair and public hearing by a legally constituted competent, independent and impartial judicial body in the determination of a person's rights and obligations111 – with specific reference to a fair and public hearing,112 independent and impartial tribunals,113 the right to an effective remedy,114 and access to legal aid and assistance.115

Also at the UN level, several instruments contain a range of relevant measures related to adjudication of (civil) disputes, effectively impacting on social security adjudication as well. In particular, the International Covenant on Civil and Political Rights (ICCPR) enjoins state Parties to ensure that: (i) any person whose rights or freedoms recognised in the Covenant are violated shall have an effective remedy; (ii) any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; and (iii) the competent authorities shall enforce such remedies when granted.116 The Covenant further guarantees equality before courts and tribunals, and stipulates that in the determination of a person's rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.117

Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)118 stipulates that state Parties shall assure to everyone within their jurisdiction effective protection and remedies, through competent national tribunals and other State institutions, against any acts of racial discrimination which violate his/her human rights and fundamental freedoms contrary to the Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. Also, the Convention on the Elimination of Discrimination against Women (CEDAW) requires of state Parties to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.119 Moreover, it should be noted that while the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not explicitly regulate the adjudication of disputes, the UN Committee on Economic, Social and Cultural Rights (UNESCR) has held that accessible, affordable, timely and effective remedies should be available to aggrieved individuals or groups.120

Finally, mention could be made of article 6(1) of the European Convention on Human Rights (ECHR),121 which provides that ‘in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ The European Court of Human Rights has acknowledged that the right to a fair trial embodied in article 6, is applicable to claims concerning social security benefits.122

109 African Commission on Human and Peoples' Rights Principles and Guidelines on the Right to a Fair Trial and

Legal Assistance (1999). 110 Kigali Declaration Sect A, Art 5. 111 African Commission on Human and Peoples' Rights Principles and Guidelines on the Right to a Fair Trial and

Legal Assistance Sect A, Art 1. 112 Ibid, Arts 2 & 3. 113 Ibid, Arts 4 & 5. 114 Ibid, Sect C. 115 Ibid, Sect H. 116 Art 2(3)(a)-(c) ICCPR. 117 Art 14(1). 118 Art 6 CERD. 119 Art 2(c) CEDAW. 120 UNCESCR General Comment No. 9, The domestic application of the Covenant (19th Session, 1998), UN doc.

E/C.12/1998/24, [9]. 121 Adopted in 1950; entered into force 1953. 122 Feldbrugge v. Netherlands (8562/79) [1986] ECHR 4 (29 May 1986) and Deumeland v. Germany (1986) 8

EHRR 448 86/3 (29 May 1986).


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As will be reflected on in more detail in the rest of this contribution, the above-mentioned ILO, other international and SADC instruments affect several areas of social security adjudication. There areas include:

• Establishment of sequential and complementary reviews and appeals procedures • Establishment of independent and impartial courts or tribunals • Provision of reasonable time limits for reviews (complaints) and appeals • Guarantee of expeditious (rapid) and simple proceedings • Enforcement of procedural guarantees to ensure a fair hearing • Guarantee of representation and legal assistance • Provision of effective (enforceable) remedies

IV. CORE ELEMENTS OF REQUIRED REFORMS123

A. Institutional and Structural Separation: Complaints and Appeals A clear distinction has to be drawn between two stages of adjudication of social security disputes. This implies that a complaining applicant or beneficiary should be able to access a higher level independent appeal body, should they still feel aggrieved once the review procedure within the social security institution which decided on the issue in the first place has been exhausted. These ‘internal’ and ‘external’ adjudication bodies should be institutionally and structurally separate – they must be different institutions falling in separate structural domains.

According to the CEACR, there should both be a complaint and appeal phase: the complaint against the social security institution which took the original decision should, generally speaking, be lodged with a higher level administrative body within the institution, followed by an appeal against the decision of that body to an administrative, judicial, labour or social security court or tribunal.124 This implies, according to article 27(1) of Convention 168 of 1988,125 that a dispute concerning the refusal, withdrawal, suspension, or reduction of the quantum of benefits must be resolved by the body administering the scheme, and that there should thereafter be an appeal to an independent body. This is echoed by the provisions of article 70(1) of ILO Convention 102 of 1952,126 in relation to the right of appeal in case of refusal of the benefit or complaint as to its quality or quantity, which has led to the following conclusion by the CEACR:127

In accordance with Convention No. 102, the right of appeal should be guaranteed against decisions of a social security administration either to a court of a general jurisdiction or to a special tribunal. The concept of appeal further implies the settlement of the dispute by an authority that is independent of the administration that reviewed the initial complaint.

123 See also the paper by M Nyenti, M Olivier and A Govindjee, above n 105, [4]. 124 ILO Social security and the rule of law, above n 17, [434]. 125 Employment Promotion and Protection against Unemployment Convention. 126 Social Security (Minimum Standards) Convention. Art 70(1) provides as follows (for a similar provision, see art

34(1) of Convention 128 of 1967 (Invalidity, Old-age and Survivors' Benefits Convention) and art 29(1) of Convention 130 of 1969 (Medical Care and Sickness Benefits Convention)): ‘Every claimant shall have a right of appeal in the case of refusal of the benefit or complaint as to its quality or quantity.’ Two qualifications are contained in art 70(2) and (3) respectively, relating to two distinct scenarios: (a) Where the administration of medical care is entrusted to a Government department – according to art 70(2),

‘Where in the application of this Convention a Government department responsible to a legislature is entrusted with the administration of medical care, the right of appeal provided for in paragraph 1 of this Article may be replaced by a right to have a complaint concerning the refusal of medical care or the quality of the care received investigated by the appropriate authority.’ A similar qualification is contained in art 23(2) of ILO Convention 121 of 1964 (Employment Injury Benefits Convention) and art 29(2) of Convention 130 of 1969 (Medical Care and Sickness Benefits Convention). Interestingly, art 31 of Convention 165 of 1987 (Social Security (Seafarers) Convention (Revised)) stipulates that the investigation of the complaint by the appropriate authority should be in addition to the right to appeal in terms of art 30 of that Convention, which provides: ‘Every person concerned shall have a right of appeal in case of refusal of the benefit or complaint as to its nature, level, amount or quality.’

(b) Where a special tribunal has been established – according to art 70(3), ‘Where a claim is settled by a special tribunal established to deal with social security questions and on which the persons protected are represented, no right of appeal shall be required.’ A similar qualification is contained in art 23(3) of ILO Convention 121 of 1964 (Employment Injury Benefits Convention).

127 ILO Social security and the rule of law, above n 17, [406]. Emphasis added.


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Merely guaranteeing the right to seek review of the decision by the same administrative authority would not therefore be sufficient to constitute an appeal procedure under Convention No. 102.

The institutional and structural separation suggested here is evidently also reflected in the other, at times more elaborately worded Africa-based, UN and European instruments reflected on above.128 This is evident from the emphasis placed in the standards emanating from these instruments on the final determination of disputes by an appropriate independent institution, namely a court or independent and impartial tribunal. This is further echoed by provisions in SADC constitutions relating to access to justice,129 as well as by the requirement of access to adjudication institutions that have the power to finally determine social security disputes, encapsulated in article 21.1(b) of the SADC Code on Social Security.130

This required standard is for various reasons important for the reform of SADC social security adjudication systems. Firstly, as noted above,131 in several cases, a formal internal complaints or review mechanism and/or external appeal body is not provided for by the relevant SADC social security law. This would generally also apply to the many instances where external labour law institutions undertake appeal functions132 – in most of these cases a dedicated in-house review system, internal to the social security institution, is not provided for. In essence, therefore, the position is that provision for, and an institutional and structural separation between, an internal review and external appeals function in social security matters is simply non-existent in many SADC countries, in relation to most of the social security schemes.

Secondly, as is discussed in more detail below,133 the current highest level of appeal body available under the existing social security laws often lacks the core characteristic of independence as required by international standards.

Thirdly, with some exceptions,134 provision is not made in the social security laws for the civil courts to exercise a proper appeal function when hearing social security disputes. In other words, an opportunity to fully reconsider the matter heard by the lower-level adjudication institution does not, as a rule, exist. This is the result of the fact that disputes emanating from public social security institutions can be entertained by courts of law (usually a High Court) only on the basis of judicial review.135

B. Access to Courts or to Independent and Impartial Tribunals Three core observations need to be made in relation to the nature and status of the institution that has to finally determine a social security appeal. It is evident, from both the general principles contained in international human rights instruments and the specific standards emanating from international social security law, that:

128 See Part IIIB above, and the references quoted. 129 See Part IIA above. 130 See Part IIIB above. 131 Part IIB above (see n 17). To this list could be added non-medical claims entertained by the Compensation

Commissioner under the Occupational Diseases in Mines and Works Act (ODMWA) 78 of 1973 (South Africa) and by the Road Accident Fund in terms of the Road Accident Fund Act (RAFA) 56 of 1996 (South Africa).

132 Part IIB above. 133 Part IVB above. 134 See, for example, sect 91(5) of COIDA (South Africa), which regulates the exercise of appeal jurisdiction by the

High Court in the event of certain disputes. 135 Civil courts invariably exercise judicial review functions in respect of administrative decisions taken by public

bodies, such as public social security institutions.


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a) Adjudication can be undertaken by either136 a court or another independent137 and impartial body, notably tribunals;138

b) The appeal institution has to be independent not only of the administrative institution which took the initial decision, but also of improper internal and external influence,139 including influence by the parties and the executive;140 and

c) Several matters need to be considered in determining the independence and impartiality of an adjudication institution. These matters include the manner of appointment of the adjudicators, their terms and removal of office, reporting and supervision, legal knowledge and expertise.141

While countries with established social security systems generally appear to guarantee the right to appeal to an independent body,142 the picture in SADC countries is a mixed one. At the SADC regional level, there is some support for the requirement of an appeal to a court or an independent tribunal.143 Constitutionally speaking, SADC constitutions invariably provide for access (in civil matters) to courts144 or other (adjudicating) institutions,145 at times referred to as tribunals,146 emphasising specifically the independent and impartial nature of these institutions. From a statutory perspective, as mentioned above,147 limited provision is made in social security laws for

136 ILO instruments often do not indicate the nature and identity of this body. Most of the Conventions merely

mention the right to an appeal; art 27(1) of Convention 168 of 1988 indicates that this is an appeal to an independent body. Paragraph 112 of Recommendation 69 of 1944 (Medical Care Recommendation) refers to an appeal to an independent tribunal, while par 27(8) of the Annex to the ILO Income Security Recommendation 67 of 1944 suggests that appeals ‘… should preferably be referred to special tribunals …’; in addition, par 27(10) of the Annex to that Recommendation suggests that ‘Provision for uniformity of interpretation should be assured by a superior appeal tribunal.’ However, the CEACR has interpreted the right to appeal to imply right of appeal ‘either to a court of a general jurisdiction or to a special tribunal’ – see ILO Social security and the rule of law, above n 17, [406].

137 Independence of the appeal institution is rarely mentioned in relevant ILO instruments – see art 27(1) of Convention 168 of 1988, and par 112 of Recommendation 69 of 1944 where such mention is made. However, through its interpretative activity the CEACR has made it clear that the appeal authority should be independent of the decision-making body (ILO Social security and the rule of law, above n 17, [406] and should enjoy judicial independence (ILO Social security and the rule of law, [433]).

138 See Part IIIB above, and the references quoted, as well as ILO Social security and the rule of law, above n 17, [406]. See also art 10 of the Universal Declaration of Human Rights (1948), which states: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’

139 ILO Social security and the rule of law, above n 17, [433]. See also art 21.1(b) of the Code on Social Security in SADC (2007).

140 See, with reference to the ECHR, Interights Right to a fair trial under the European Convention on Human Rights (Article 6) (Manual for Lawyers), 2009, 28; Belilos v Switzerland (10328/83) [1988] ECHR 4 (29 April 1988); and Langborger v Sweden (1989) (Case no 11179/84 – (1990) 12 E.H.R.R. 416. In relation to the African (Banjul) Charter on Human and Peoples' Rights, see the African Commission on Human and Peoples' Rights Principles and Guidelines on the Right to a Fair Trial and Legal Assistance Sect A, Art 4 states: ‘... the independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities. In order for independence to be achieved, there shall not be any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review in accordance with the law.’ Also, Sect A, Art 5 stipulates ‘... The Commission requires an adjudication institution to be impartial, with its decision based only on objective evidence, arguments and facts presented before it. Judicial officers shall decide matters before them without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason.’

141 African Commission on Human and Peoples' Rights Principles and Guidelines on the Right to a Fair Trial and Legal Assistance Sect A, Art 4; ILO Social security and the rule of law, above n 17, [433].

142 I.e. a body ‘independent of that which initially awards and pays benefits’ – ILO Social security and the rule of law, above n 17, [409].

143 As indicated in Part IIIB above, according to the SADC Tribunal, a claimant/appellant is entitled to an opportunity to make representations before an independent and impartial court or tribunal. Also, art 21.1(b) of the Code on Social Security in the SADC refers to ‘independent adjudication institutions’ (own emphasis).

144 The Angolan (art 29(1)), Mozambican (art 82) and Tanzanian (arts 107A & 107B) constitutions only refer to ‘courts’, with no mention of other adjudicating institutions or tribunals.

145 As regulated in the Botswana (art 10(9)), Lesotho (sect 12(8)), Mauritian (sect 10(8)), Seychelles (art 19(7)), Swaziland (sect 21(10)), Zambian (sect 18(9)), and Zimbabwean (art 18(9)) constitutions.

146 See sect 43(2) of the Malawi; art 12(1)(a) of the Namibian; art 34 of the South African constitution. 147 Part IVA above, read with Part IIB.


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the adjudication of social security disputes, in particular by external institutions.148 While social security appeals may be heard in some instances by specialised courts,149 adjudication by institutions other than courts, such as tribunals,150 is regulated in only a few SADC countries. However, as a result of the limited treatment of these matters in the relevant laws, and the paucity of judicial precedent, it is rarely possible to determine whether these institutions are in law and fact independent and impartial.

In the SADC country where the most comprehensive legal treatment of social security adjudication is provided for, South Africa, the legal and factual situation does not reflect the international standards in relation to independence and impartiality. In general, social security adjudication forums in South Africa fail to meet the ideal standard of independence and impartiality, as they can effectively be regarded as internal organs of the social security institutions. In most instances, but with some exceptions, the political or administrative heads of the relevant Departments in charge of the respective social security institutions are responsible for the appointment of members of the adjudication forums. They also determine the length and (other) conditions of employment of members, including remuneration, can discipline the members and terminate their appointment.151 These institutions also do not have independent funding through direct appropriations from parliament, as they are mostly funded by the relevant Departments as part of the Departments' annual budget allocations. The financial dependence of the adjudication forums is further indicated by the fact that they are not independent accountable institutions in terms of the Public Finance Management Act (PFMA) 1 of 1999. Management, governance, oversight and supervision are also undertaken by the Departmental or institutional heads; and the adjudication forums are in most cases required to report to Departmental or institutional heads.152

It is clear that in this particular area comprehensive legal reform is needed in most SADC countries. Much can be gained from the applicable international standards, emanating partly from ILO Conventions, but more particularly from a range of human rights instruments. In addition, SADC constitutions provide a clear benchmark and principled basis for the required reforms.

C. Due Process

1. Reasonable timeframes for the lodgement of complaints and appeals The South African Constitutional Court recently (again) indicated that time limits and notice periods are considered necessary in a dispute resolution system as they bring certainty and

148 See also ILO Social security and the law, above n 17, [409] in relation to among others Swaziland. 149 For example, sect 37 of the National Social Security Authority Act 12 of 1989 (Zimbabwe) provides for an appeal

to the Administrative Court should a person be aggrieved by a decision of the Board of the Authority; according to sect 45(1) of the Social Security Act 34 of 1994 (Namibia) an appeal against a decision of the Commission lies to the Labour Court; see further Part IIB above.

150 See in particular sects 43-46 of the Social Security (Regulatory Authority) Act 8 of 2008 (Tanzania); sect 36 of the National Pension Act 44 of 1976 (Mauritius); sect 18 of the Social Assistance Act 13 of 2004 (South Africa).

151 MP Olivier, A Govindjee and M Nyenti, above n 19, 22; M Nyenti, M Olivier and A Govindjee, above n 105, [4.1]. See, among others, reg 4 of the Regulations relating to the Lodging and Consideration of Applications for Reconsideration of Social Assistance Application by the Agency and Social Assistance Appeals by the Independent Tribunal Government Notice R. 746 of 19 September 2011 (Government Gazette 9591 of the same date) (appointment of Tribunal members by the line function Minister); see also sect 2(1)(b) read with the definition of presiding officer in sect 1 in COIDA; sect 40(2)(b) of ODMWA; and sect 37, read with sects 47-50 of the UIA. In the case of the Compensation Court, the Minister of Labour appoints presiding officers of the Court, subject to relevant laws governing the public service (sect 2(1)(b) read with the definition of presiding officer in sect 1 of COIDA). The Minister also appoints assessors to assist in the hearing of any objection (after consultation with the Compensation Board)(sects 8(1) and (4) and 12(1)(c) of COIDA), as is the case with appointment of one or more medical practitioners as medical assessors (section 8(4) of COIDA), and determines period and conditions of their appointment (section 8(5) of COIDA). The presiding officer could be considered to be an employee of the public service as they are officers and employees employed by the Minister according to the laws governing the public service (sect 2(1)(b) of COIDA). The independence and impartiality of such a presiding officer or assessor may consequently be compromised.

152 MP Olivier, A Govindjee and M Nyenti, above n 19, 22. See reg 6 of the Regulations to COIDA of 2008; sect 41(1) of ODMWA; sect 51 of the UIA; and reg 3(8)(a) of the Regulations to the Road Accident Fund Act of 2008.


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stability to social and legal affairs and maintain the quality of adjudication.153 However, where time limits are applicable, they must afford social security litigants an adequate and fair opportunity to bring a case, taking into account their ability to do so. As the court remarked, the socio-economic conditions in South Africa (the backdrop of poverty and illiteracy in South African society) are important in considering the reasonableness and justifiability of time bar and notice periods. This is because in a society where the workings of the legal system remain largely unfamiliar to many citizens, due care must be taken that rights are adequately protected as far as possible.154 Time limits must therefore be treated with caution:155

To pass constitutional muster, a time bar provision must afford a potential litigant an adequate and fair opportunity to seek judicial redress for a wrong allegedly committed. It must allow sufficient or adequate time between the cause of action coming to the knowledge of the claimant and the time during which litigation may be launched. And finally, the existence of the power to condone non-compliance with the time bar is not necessarily decisive.156

These principles are echoed by international standards. According to the CEACR, the principle of due process implies the right of every person to a fair and public hearing by an independent and impartial court or tribunal within a reasonable time.157 The CEACR suggests that although ILO standards do not prescribe the length of the period which should be available to the claimant to lodge a complaint, the Committee considers that such period should be of a reasonable duration.158 Other international instruments also require a reasonable time period, as indicated above.159 According to the European Court of Human Rights, the interests of the proper administration of justice justify the imposition of reasonable time-limits and procedural conditions for the bringing of claims.160

Some SADC constitutions require the adjudication of civil disputes within a reasonable time, without stipulating the length of the period, and whether condonation should be available.161 Social security statutes sometimes, but often not, make provision for specific time periods within which appeals must be lodged.162 Condonation is rarely allowed.163

It is suggested that there is scope for reform of time limits applicable to the adjudication of social security disputes involving public social security institutions in Southern African countries. Even within a country such as South Africa, the relevant time periods vary considerably in length.

153 Road Accident Fund v Mdeyide 2011 (1) BCLR 1 (CC) [8]; see also Brümmer v Minister for Social Development

2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC), [51]. 154 Road Accident Fund v Mdeyide 2011 (1) BCLR 1 (CC) [70]. 155 Where a statute imposes a time limit and/or notice period requirement, an aggrieved person is barred from

bringing the case to court after the expiry of the time limit. In South African jurisprudence, time limits and notice requirements on the right of access to court have been described as ‘conditions which clog the ordinary right of an aggrieved person to seek the assistance of a court of law’ (Benning v Union Government (Minister of Finance) 1914 AD 180 at 185); ‘a very drastic provision’ and ‘a very serious infringement of the rights of individuals’ (Gibbons v Cape Divisional Council 1928 CPD 198 at 200). These requirements have the effect of ‘hampering as it does the ordinary rights of an aggrieved person to seek the assistance of the courts’ (Avex Air (Pty) Ltd v Borough of Vryheid 1973(1) SA 617(A) at 621F-G and Administrator, Transvaal, and Others v Traub and Others 1989(4) SA 731 (A) at 764E ).

156 Brümmer v Minister for Social Development 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) [51]. 157 ILO Social security and the rule of law, above n 17, [432, 434]. 158 Ibid [418]. 159 Part IIIB above; see in particular art 7 of the African (Banjul) Charter of Human and Peoples' Rights. 160 MPP Golub v Ukraine (Application no. 6778/05) (18 October 2005). 161 For example, in the case of the constitutions of Angola (art 29(4)), Botswana (art 10(9)), Lesotho (sect 12(8)),

Mauritius (sect 10(8)), Seychelles (art 19(7)), Swaziland (sect 21(10)), Zambia (sect 18(9)) and Zimbabwe (art 18(9)).

162 These periods range between 21 days (Zimbabwe: sect 37(2) of the National Social Security Authority Act 12 of 1989), 30 days (Tanzania: sect 46 of the Social Security (Regulatory Authority) Act 8 of 2008), and 60 days (Namibia: sect 45(1) of the Social Security Act 34 of 1994). As far as the South African social security statutes are concerned, the periods range between 90 days (Social Assistance Act (SAA): sect 18(1A); ODMWA: sect 50(1); UIA: sub-reg. 8(2) of the UIF Regulations; RAFA (medical claims): sub-reg. 3(4)(a) of the 2008 RAFA Regulations) and 180 days (COIDA: sect 91(1)).

163 Condonation may be granted in the case of, more specifically, Namibia (sect 45(2) of the Social Security Act 34 of 1994), and some of the South African social security schemes: SASSA (sect 18(4) SAA); UIF (sub-reg. 8(3) of the UIF Regulations); RAF (sub-Reg. 3(5) of the 2008 RAF Regulations).


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It is further doubtful whether, generally speaking, sufficient time is granted when an appeal is lodged, bearing in mind the socio-economic conditions of social security clients (applicants, beneficiaries and dependants) and the geographical inaccessibility of claims procedures contained in several SADC social security laws. Also, some flexibility can be built into the system by empowering the adjudication bodies to consider the granting of condonation for late filing of an appeal, on good cause shown.

2. Guarantee of expeditious (rapid) resolution of disputes and simple procedures International standards, including SADC regional standards,164 require the expeditious resolution of disputes. As has been noted, this aims to protect the parties against excessive delays in legal proceedings and to highlight the impact of delay on the effectiveness and credibility of justice.165 This has been echoed by the South African Constitutional Court: the court has held that inordinate delays in litigating damage the interests of justice – ‘They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs.’166

Litigation procedures should therefore be simple and rapid.167 As has been indicated by the CEACR,

Simple and rapid procedures are crucial to ensure that the rights of complaint and appeal are accessible and effective. They are especially important in social security matters as benefits are, in most cases, the only financial support available to beneficiaries. The Committee stresses that decisions by the relevant administrative body that reject or modify benefits, claims or requests should be explained to individual claimants in writing in simple, clear and easy to understand terms. By 'easy to understand' the Committee intends for language and terminology to be used that would be readily understood by an individual of similar background, education and related circumstances.168

In particular as far as appeals are concerned, the right to a fair trial,169 according to the CEACR, guarantees that any decision has to be duly motivated: the reasoning that led to the decision must be explained.170 In fact, the requirement for simple procedures further requires that the law and regulations relating to social security (social insurance) ‘... should be drafted in such a way that beneficiaries and contributors can easily understand their rights and duties. In devising procedures to be followed by beneficiaries and contributors, simplicity should be a primary consideration’.171

Finally, within the sphere of the UN International Covenant on Economic, Social and Cultural Rights, in a general comment, the UN Committee on Economic, Social and Cultural Rights (UNESCR) noted as follows emphasised the importance of ensuring the availability of appropriate means of redress and accountability for violations of economic, social and cultural rights within national legal systems. States are under a duty to ensure that legal remedies, whether of a judicial or administrative nature, are available to aggrieved individuals or groups. These remedies must be ‘accessible, affordable, timely and effective’.172

The right to an effective remedy need not be interpreted as always requiring a judicial remedy. Administrative remedies will, in many cases, be adequate .... Any such administrative remedies should be accessible, affordable, timely and effective.

164 Art 21.1(b) of the Code on Social Security in SADC (2007) requires the expeditious determination of social

security disputes. 165 Interights, Manual for Lawyers –Right to a fair trial under the European Convention on Human Rights (Article 6)

(2007), 52. 166 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) [11]. 167 Art 27(1) of ILO Convention 168 of 1988. 168 ILO Social security and the rule of law, above n 17, [428]; see also [429-431] and [436]. 169 Discussed in Part IVC3 below. 170 ILO Social security and the rule of law, above n 17, [433]. 171 Par 27(3) and (4) of the Annex to the ILO Income Security Recommendation 67 of 1944; ILO Social security and

the rule of law, above n 17, [429]. See also art 21.1(b) of the Code on Social Security in the SADC for a similar requirement at the regional level.

172 UNCESCR General Comment No. 9, The domestic application of the Covenant (19th Session, 1998), UN doc. E/C.12/1998/24, [9]; ILO Social security and the rule of law, above n 17, [432].


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SADC constitutions rarely express themselves on the period within which civil disputes must be finalised173 and on simplicity (and flexibility) of the procedures.174 However, almost without exception, these constitutions provide for a ‘fair hearing’.175 Social security statutes in SADC also provide little evidence of the trend that is discernible in countries with established social security adjudication systems to make the procedures in social security matters simple and rapid.176 There are only a few examples where time-frames for the resolution of social security disputes have been indicated.177 Explicit provision for simple and non-formal hearing procedures in relation to social security appeals is seldom made.178 It is, therefore, clear that simplicity of procedures and the speedy resolution of social security disputes are generally speaking not guaranteed by SADC social security statutes. This may impair social security litigants' rights of access to justice. And yet, it is also evident that the broad-based constitutional provisions requiring a fair hearing, and the provisions of a host of international instruments, as interpreted by the relevant supervisory organs – as well as some best practice evidence in the SADC region – provide ample scope and opportunity to inform legal reform in this area in SADC countries.

3. A fair hearing and procedural equality It is internationally – as well as in terms of regional standards applicable to SADC179 and jurisprudence emanating from the SADC Tribunal180 – accepted that social security appeal procedures should observe principles of due process. Considerations of procedural fairness and fair treatment are paramount.181 In fact, as has been noted by the CEACR,

[t]he right to a fair trial therefore is a fundamental safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms, including the right to social security, and enables effective functioning of the administration of justice.182

It is, therefore, required that the resolution of disputes must be undertaken in a fair and public manner. As a rule, consequently, this requires a public hearing, unless special circumstances are present, such as where publicity would prejudice the interests of justice.183

Several associated rights are linked to the obligation to observe principles of due process. This includes in particular the need to ensure procedural equality between the parties to the dispute184 – since social security applicants and beneficiaries usually have to face a government or administrative body, such as a social security institution. As a result, individual appellants should have ‘reasonable opportunities to assert or defend their rights’.185

Procedural equality between the parties to proceedings further requires equal access to evidence, such as documents and expert opinions. Care should be taken to ensure that the

173 However, art 29(4) of the Angolan constitution requires a ruling within a reasonable period of time, while art

29(5) stipulates that judicial proceedings should be swift; see also art 72. 174 Art 107A(2)(e) of the Tanzanian constitution requires of courts to dispense justice without being tied up with

technicalities which may obstruct the dispensation of justice. 175 In particular, in the case of the constitutions of Angola (art 29(4)), Botswana (art 10(9)), Lesotho (sect 12(8)),

Mauritius (sect 10(8)), Namibia (art 12(1)(a)); Seychelles (art 19(7)), South Africa (sect 34), Swaziland (sect 21(10)), Zambia (sect 18(9)) and Zimbabwe (art 18(9)).

176 See ILO Social security and the rule of law above n 17, [431], indicating that Namibia admitted that the appeal procedures in social security matters are neither simple nor rapid.

177 Notably the Independent Tribunal for Social Assistance Appeals (South Africa) (a 90 day time period for the finalisation of the appeal is stipulated – reg 16(2) of the 2011 Regulations, above n 151) and the Social Security Regulatory Authority (Tanzania) (indicating that an appeal lodged with the Authority must be reviewed within 30 days – sect 45 of the Social Security (Regulatory Authority) Act 8 of 2008).

178 Sect 45(1) of COIDA (South Africa) – in relation to claims, and not social security appeals – allows for carrying out an investigation or formally hearing a claim.

179 Art 21.1(b) of the Code on Social Security in SADC (2007). 180 See Part IIIB above. 181 See, to this effect, ILO Social security and the rule of law, above n 17, [432]. 182 Ibid [433]. 183 Art 6(1) ECHR; art 14(1) ICCPR; art 10 UDHR. 184 ILO Social security and the rule of law, above n 17, [433]; African Commission on Human and Peoples' Rights

Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa Sect A, Art 2(a). 185 ILO Social security and the rule of law, above n 17, [436].


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complainant (i.e. the social security appellant) does not alone bear the burden of proof.186 Furthermore, parties should have adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence.187 As indicated by the African Commission on Human and Peoples' Rights, a party should further be entitled to the assistance of an interpreter if he or she cannot understand or speak the language used in or by the relevant body.188

Fairness also requires that proceedings should be inexpensive. Social security applicants and/or beneficiaries who appeal against decisions of social security institutions should not be deprived of the right to adjudication due to costs. According to the CEACR, pursuant to articles 70(1) and 71 of ILO Convention 102 of 1952, if a fee is charged, ‘... the cost of appeal should be kept at the absolute minimum so as to allow for the effective exercise of the right of access to justice, including by persons of small means’.189

SADC constitutions do in general terms require a fair hearing190 and that civil disputes are publically resolved.191 As far as the latter issue is concerned, the constitutions invariably stipulate that proceedings and the announcement of the decision by the court or other authority should be held in public. However, it is possible to deviate from the requirement of a public hearing (but not the public announcement of the decision, where this is explicitly provided for) in the event of any of a range of circumstances indicated by the respective constitutions, including consent by the parties to the dispute, or where the court or other authority may consider this necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality, the welfare of persons who have not reached majority age, or the protection of privacy.192

Some of the above principles are at times adhered to by Southern African social security appeal institutions. Sometimes, for example, it may be stipulated that no fee is charged for the appeal proceedings, or that the social security adjudication institution could grant an equitable costs order.193 However, in other areas requiring a fair procedure the international standards indicate that reforms are needed. For example, in several instances no provision is made for the appellant to present arguments and evidence and to challenge or respond to opposing arguments or evidence – simply because a personal appearance is not foreseen or allowed,194 and the matter is decided purely on the basis of documents relied on when the initial decision was made. Also, from a procedural point of view, the various social security statutes do not formally regulate the burden of proof, and therefore largely leave it to the discretion of the adjudicator to deal with the matter.195

In conclusion, SADC constitutions, as also confirmed by responses at the regional level, contain broad-based provisions relating to a fair hearing and the public nature thereof. These provisions and responses, strengthened by the applicable international law framework, could be effectively employed to reform and improve the weak statutory basis in many SADC countries, which currently impacts directly on core procedural rights of claimants and appellants. In fact, the absence of procedural guarantees necessarily deprives social security beneficiaries of their entitlement to access to justice.

186 Ibid. 187 Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa Sect A, Art 2(e). 188 Ibid, [2(g)]. 189 ILO Social security and the rule of law, above n 17, [436]. 190 See Part IVC2 above. 191 However, art 29(1) of the Angolan constitution contains a different emphasis, by stipulating that ‘The law shall

define and ensure adequate protection for the secrecy of legal proceedings.’ 192 See the constitutions of Angola (art 29(4)), Botswana (art 10(9)-(11)), Lesotho (sect 12(9)-(10)), Mauritius (art

10(9)-(10)), Namibia (art 12(1)(a)); Seychelles (art 19(7)), South Africa (sect 34), Swaziland (sect 21(11)-(12)), Zambia (sect 18(10)-(11)) and Zimbabwe (art 18(10)-(11)).

193 See in particular sect 46 of the Social Security (Regulatory Authority) Act 8 of 2008 (Tanzania) and sect 91(4) of COIDA (South Africa).

194 See Part IVC4 below. 195 Of course, to the extent that the general rule, relevant in judicial proceedings of a civil nature, does not apply –

namely that the plaintiff bears the onus to prove his/her case on a balance of probabilities.


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4. Appearance, representation and legal aid The international standard of a fair and public hearing implies that the individual concerned has the right to personal appearance.196 It has to be noted that a public hearing can only be dispensed with if special circumstances are present.197 Furthermore, the right to be represented, as discussed below, would not make sense if the affected individual does not have the right to appear personally in the first place.

The right to a fair trial also implies a right to representation. According to the CEACR, the right to receive legal aid is an essential means of helping beneficiaries in their efforts to identify and understand their legal rights and obligations:

The right to receive legal aid is an essential means of helping beneficiaries in their efforts to identify and understand their legal rights and obligations. It is often the case that the provisions of the relevant national legislation are not formulated in simple and readily understandable terms. Such aid is also rendered necessary by the unequal positions of the parties involved, as state institutions and bodies are in a more favourable position. Beneficiaries often feel helpless when faced with complicated provisions, and without proper assistance they may be unable to resolve the issues that arise. Assistance in social security matters enables people to understand their legal obligations and assert their legal rights more effectively.198

Consequently, the CEACR suggests that both parties involved in social security adjudication should be guaranteed the right to engage a lawyer or other qualified representative of their choice.199 Furthermore, where necessary, legal assistance provided by the State should be available: ‘the law should guarantee that claimants who cannot afford legal assistance are entitled to be represented by a public defender/counsel for the defence appointed by the competent authority.’200

This is echoed by the position (in general terms) adopted by the European Court of Human Rights201 and the African Commission on Human and Peoples' Rights. The Commission suggests that a party to a civil case has a right to have legal assistance assigned to him or her in any case where the interest of justice so requires, and without payment by the party to a civil case if he or she does not have sufficient means to pay for it. The interest of justice is determined in civil cases by considering the complexity of the case and the ability of the party to adequately represent himself or herself; the rights that are affected; and the likely impact of the outcome of the case on the wider community.202

The right to appear personally and to be represented by legal representatives in civil disputes is specifically protected in most of the SADC constitutions.203 However, explicit provision for legal aid is rarely made.204

196 See generally ICCPR art 14(1); ECHR art 6(1); Banjul Charter art 7(1)(c) (right to defence). 197 See Part IVC3 above. 198 ILO Social security and the rule of law, above n 17, [425]; see also [426]. 199 ILO Social security and the rule of law, above n 17, [436]; see also [426] and the African Commission on Human

and Peoples' Rights Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa Sect A, Art 2(f). See further art 34(2) of ILO Convention 128 of 1967 (Invalidity, Old-Age and Survivors' Benefits Convention); art 27(2) of Convention 168 of 1988; and par 27(8) of the Annexure to Recommendation 67 of 1944.

200 ILO Social security and the rule of law, above n 17, [436]. 201 The Court has held that a right to a fair and public hearing (art 6(1) ECHR) includes the right to legal aid and

legal assistance in certain circumstances. Relevant considerations include the complexity of the procedure or of the case and the seriousness of what is at stake for the applicant: Airey v Ireland (1979) 2 EHRR 305, [26]; P, C and S v United Kingdom (2002) 35 EHRR 31 [91]; Steel and Morris v United Kingdom (2005) 41 EHRR 22, [2005] ECHR 103.

202 Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa Sect H. 203 For example, the constitutions of Angola (art 29(2)), Botswana (art 10(11)), Lesotho (sect 12(10)), Mauritius (sect

10 (10)); Seychelles (art 19(9)), South Africa (sect 34), Swaziland (sect 21(12)(b)), Zambia (sect 18(11)(a)) and Zimbabwe (art 18(11)(a)).

204 See, however, art 29(1) of the Angolan constitution, which stipulates: ‘… justice shall not be denied to anyone due to a lack of financial means.’ It is argued below that right to legal aid and legal assistance is embedded in the right to a fair public hearing in sect 34 of the South African constitution.


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In light of international standards, there is evidently a need to reform parts of the social security adjudication framework in SADC countries as far as these issues are concerned. For example, some South African social security statutes provide for both personal appearance and representation and for the parties to a dispute to be represented.205 However, this is not always the case. Sometimes, as a rule, no personal appearance, let alone representation, is allowed.206

Furthermore, contrary to the requirements of international and regional instruments, the statutes do not guarantee a right to free legal assistance for parties to social security disputes. However, it can be argued that a right to legal aid and legal assistance is foreseen in the right to a fair public hearing in section 34 of the South African constitution. South African courts have also confirmed this conclusion. In Nkuzi Development Association v Government of the Republic of South Africa,207 the Land Claims Court held that labour tenants and occupiers have a right to legal representation or legal aid at state expense if substantial injustice would otherwise result, and they cannot reasonably afford the cost thereof from their own resources. This approach makes a compelling case for the provision of free legal assistance to the parties in social security disputes, also in view of their socio-economic status.

Representation and legal aid are areas where solutions are not easily forthcoming. Compliance with international social security law would require major adaptations in SADC countries. Cost implications constitute one consideration; the availability of suitably informed representatives another. A range of flexible and context-sensitive approaches may be required, as will be discussed in the concluding part of this contribution.208

5. Effective remedies and enforcement The international standards applicable to due process entail that an appellant has the right to an effective remedy, which should be ‘accessible, affordable, timely and effective’, and be legally enforceable.209 The African Commission on Human and Peoples' Rights has concluded that, based on the provisions of the African (Banjul) Charter on Human and Peoples' Rights,210 Member States are compelled to ensure that any remedy granted is enforced by competent authorities; and that any state body against which a judicial order or other remedy has been granted complies fully with such an order or remedy.211 The European Court of Human Rights has held that the non-execution of judgments granting social benefits constitutes a violation of a ‘fair trial’ required by article 6(1) of the ECHR: a government may not cite lack of financial resources as a reason for failure to pay compensation.212

The now suspended SADC Tribunal emphasised that available remedies should be effective in law and practice, and provide real redress.213 Except for some SADC constitutions which in broad terms require effective protection or remedies214 in civil matters, little concrete provision guaranteeing effectiveness as regards judgments and remedies is made in the constitutions. The same picture emerges from SADC social security statues. Therefore, from a legal point of view, more can be done to improve the effectiveness of remedies available under the different social security laws. For example, the possible remedies that can currently be provided by the public social security institutions in South Africa are limited due to the circumscription of such remedies in the various statutes. This emanates from the restricted powers afforded to these institutions. Sometimes the institution is only given the power to give a particular ruling provided for in the

205 For example, COIDA and ODMWA. 206 As in the case of appeals heard by ITSAA (Independent Tribunal for Social Assistance Appeals) (reg 16(2) of the

2011 Regulations in terms of the Social Assistance Act 13 of 2004, n 151 above) and the National Appeals Committee of the UIF (sect 37 of the UIA).

207 2002 (2) SA 733 (LCC) 737B-D. 208 Part V below. 209 ILO Social security and the rule of law, above n 17, [436] (see also [433]); UNCESCR General Comment No. 9,

The domestic application of the Covenant (19th Session, 1998), UN doc. E/C.12/1998/24, [9]. 210 Art 7. 211 Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa Sect C. 212 Burdov v Russia (Application no. 59498/00) (7 May 2002). 213 See Part IIIB above. 214 See art 29(5) of the Angolan and sect 41(3) of the Malawian constitutions.


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relevant law;215 at times it can grant another decision it deems appropriate.216 The limited scope of remedies is often linked to the limitation on the kinds of disputes which a certain social security institution is entitled to deal with.

The same applies, as regards enforceability of the decisions of the existing adjudication mechanisms. Some of the social security statutes stipulate that the decisions of the adjudication forums are binding on the administrative institutions.217 For example, the Compensation Court is considered to have the status of a magistrate court (with its decisions enforced as such).218 However, most of the adjudication forums are not afforded the power and mechanisms to enforce their rulings. The implication is that formal court proceedings have to be embarked upon to enforce rulings. In most instances this would be impractical – also because of its unaffordability – and would effectively deny the appellant an appropriate remedy.

The area of remedies and enforcement therefore requires substantial legal reform. SADC statutory frameworks should allow for a sufficient scope of remedies and their enforcement – a legal framework which does not make proper allowance for this will have serious consequences for an individual’s access to justice, as emphatically indicated by the SADC Tribunal.219

V. CONCLUSIONS AND RECOMMENDATIONS This contribution has made clear that social security adjudication, especially at the appeal level, is inadequately regulated in SADC and not appropriately aligned with the international normative framework. This appears to be the position despite the presence of a constitutional framework in almost all SADC countries, which includes the right to a fair hearing by courts or other independent and impartial institutions; at times also the right to social security and social security-related rights; and certain procedural guarantees, encapsulated in the requirement that due process should characterise civil dispute resolution, including social security adjudication. International standards confirm and amplify these arrangements, despite the poor ratification of in particular relevant ILO Conventions by SADC member states. These and other international and regional instruments provide important guidelines and a normative framework, supported by an international law-friendly approach appearing from most SADC constitutions. SADC regional instruments and standards provide further support, albeit limited, as is the case with the human rights-oriented approaches adopted by the currently inoperative SADC Tribunal in relation to access to justice.

From an overall perspective, there is need to address structural deficiencies, implement a broad-based normative framework, and ensure political commitment. Streamlined social security adjudication structures are absent in many SADC countries, while fragmentation and the lack of an integrated adjudication institution at the apex level appear to be one of the core problems. Multiplicity of appeals institutions and processes – for example, where both labour law, social security and general court of law institutions deal with different parts of the social security system at the appeal level, as is the case in some SADC countries – is not conducive to a simplified operation of the system, the development of coherent jurisprudence, and a general understanding and appreciation on the part of users of the dispute resolution system.220 To a large extent this is a direct consequence of the patchwork fashion in which the social security systems have developed and the uncoordinated regulation of the area of social security in SADC. The lack of an integrated legal framework is logically reflected in the disjointed and inconsistent system of adjudication.221

215 For example, sect 50 read with sect 46 of ODMWA; sect 18(2)(b) of SAA; sect 37 of the UIA; sub-reg 3(11) of

the 2008 RAF Regulations (Regulations to the Road Accident Fund Act of 2008 regarding the Road Accident Fund Appeal Tribunal) (medical claims).

216 See sects 91(3)(a) and 91(4) of COIDA. 217 For example, SASSA: reg 18(4) of the 2011 Regulations in terms of the SAA (n 151 above); reg 3(13) of the

2008 RAF Regulations. 218 Sects 61(2), 64(5), 87(4)(b) and 91(5)(b) of COIDA. 219 See Part IIIB above. 220 Note the comment of the CEACR in this regard: ‘The general principles set out in international social security

instruments, which call for recourse procedures to be simple and rapid, militate in favour of the harmonization of the applicable procedural law throughout dispute settlement procedures in social security matters.’ (ILO Social security and the rule of law, above n 17, [436])

221 Olivier, Developing an integrated and inclusive framework for social protection in SADC, above n 2, 43.


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Furthermore, despite the constitutional guarantee of access to a court or another independent and impartial authority, little provision has been made in SADC countries for a tribunal-kind of body to undertake the determination of social security appeals. It should be asked whether mere reliance on the court system to finally determine social security appeals is appropriate in the SADC context, considering the specific socio-economic context and the lack of access which most social security users have to courts. It is often argued that normally, the courts have only review and no appeal powers, that the ordinary courts of the country are not specialised enough to deal effectively with social security matters, that access to the courts is limited, particularly as far as the indigent are concerned, that cases are often dealt with on a purely technical and legalistic basis, with little regard to the broader considerations of fairness and that court proceedings tend to be prohibitively expensive.222

This does, of course, raise the question of institutional and financial capacity. Setting up streamlined and well-functioning adjudication institutions, systems and processes; enforcing decisions of an apex appeal institution; and communicating with and assisting users of the system across a diverse and sizeable geographical area may prove to be a challenge many SADC countries and legal/social security systems cannot presently meet. Cost implications for the appeal institution, also in relation to legal aid and interpretation services, and for the individual, in relation to representation and travel, may seem insurmountable. And yet, the severity of the impact of non-adherence to internationally accepted minimum standards and guarantees in this area on the livelihoods of mainly indigent beneficiaries, and the resultant denial of justice militate in favour of measured, appropriate and flexible responses. The roll-out of support interventions, such as technical assistance in developing a suitable adjudication system and raising awareness among users of the system, as well as the provision of training may go some way to addressing some of the concerns. Flexibility and simplification may also imply that it might be best, at least initially, to use an existing adjudication body, such as a labour tribunal, to also undertake social security appeals and to incrementally expand the jurisdiction of such a body. Cost considerations might also require flexible approaches as regards legal aid and representation. These approaches may range from financial and institutional support given by governments and/or donor organisations to non-governmental institutions operating in this field and university legal aid clinics specialising in giving advice and assisting in particular indigent applicants, to allowing representation by non-lawyers.

Introducing and implementing social security adjudication standards, norms and principles emanating from international social security law in SADC countries would require a proper understanding of the normative framework – among policy- and law-makers, representative organisations of users of the system, social security institutions and those entrusted with implementing the reforms. Changes to the current legal framework are therefore imperative, but so too do administrators and adjudicators, as well as the judiciary – given its oversight role in the final analysis223 – need to be properly informed and equipped. Of course, many if not most of the principles embedded in the adjudication of social security disputes are known in the civil dispute resolution context, which should imply some familiarity with similar principles embedded in international norms. As the experience of international supervisory organs, including courts, in relation to the minimal formulation of standards shows, the interpretive activity of adjudicators and judges at the domestic level should fulfil an important role in the context-specific application, understanding and incremental development of these norms. Best practice experience in the SADC region confirms this truth – for example, the extensive interpretation given by the South African Constitutional Court to adjudication principles has achieved considerable progress, particularly in other areas of civil dispute resolution.

It might be that the CEACR suggestion of a best practice guide regarding social security procedures could be an important and authoritative tool to attain the normative objectives set out

222 Ibid. 223 In particular through the exercise of the judiciary’s judicial review function.


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above.224 Such a guide could contain and explain the relevance and operation of applicable social security adjudication standards and principles reflected in ILO and international human rights instruments; the interpretation given to these standards and principles by supervisory organs; and best practice examples at the domestic level, in both the developed and developing world.

Perhaps political commitment to the introduction and implementation of relevant international and regional norms and standards might constitute the most difficult hurdle to overcome. As the short-lived existence of the now-suspended SADC Tribunal has indicated, countries in the Region might want to jealously guard their domestic legal systems – even at the expense of introducing and implementing regional and international norms – and refuse to implement decisions taken by a regional adjudication body. Such resistance need to be overcome through persuasion and a commitment to the cause of regional harmonisation of applicable standards – which is indeed emphasised in the SADC foundational document, i.e. the Treaty. Given the nature of SADC as an international organisation, this is a task which is mainly left to be fulfilled by decision-making institutions at the regional level, in particular the Summit. It remains to be seen whether this institution will succeed in providing the leadership and direction which is required to attain this particular objective.

224 The Committee is of the opinion that the development of a ‘... best practice guide to social security procedures

would be a valuable tool for legislators and social security institutions and, if widely disseminated and followed, would no doubt facilitate improved access, expediency and efficiency in the exercise in practice of the social security rights of the persons protected. Clearly, any such improvements in the procedures regulating the provision of benefits the world over would result in tens of thousands of beneficiaries being salvaged from undue hardship. The establishment of such a social security procedural guide would improve the efficiency with which individual rights are exercised in social security matters.’ – ILO Social security and the rule of law, above n 17, [437].

THE HUMAN RIGHTS OF (IRREGULAR) MIGRANTS: AN INTERNATIONAL, REGIONAL AND SOUTH AFRICAN PERSPECTIVE (PART 2)

OCKERT DUPPER*

I. INTRODUCTION In part 1 of this article1 I pointed to the fact that some agreement is beginning to emerge internationally that irregular migrants are entitled to certain minimum rights in the migrant receiving country. While parity of treatment between regular and irregular migrants is not envisaged (neither by international and regional instruments dealing with migrant workers2 nor by the legal and policy frameworks of individual countries), it is nevertheless clear that irregular migrants entitlement to some core rights are now beyond debate. What is less certain is what these core – or minimum rights consist of. In this part of the article, I will draw upon international and regional norms and some significant developments at an individual-country level in order to make certain suggestions as to the content of these core rights in the South African context.

The paper will be structured in the following manner. Parts 2 and 3 of the paper will investigate the de facto and de lege position of irregular migrants in South Africa with specific reference to their access to social security- and labour rights as well as a number of socio-economic rights, including health care (part 4) and education (part 5). In addition, the position of cross border traders as well as unaccompanied foreign children will be considered in parts 6 and 7 respectively. Part 8 will contain some concluding remarks.

II. SOCIAL SECURITY In general, access to social assistance for migrants has always been more problematic than access to social insurance. Because social insurance schemes have to a large extent always presupposed a contract of service with the employer, nationality has not really been an issue, as least where coverage of migrants in a regular situation is concerned.3 Extending social assistance to migrants, however, has been more controversial. The reason is not difficult to discern: while the origins of social insurance schemes are based upon a reciprocal insurance relation between an insured person and a social insurance institution, the origins of social assistance schemes are based upon the notion of unilateral charitable obligation. In this regard, the prevailing opinion is that ‘it [is] not the host-state but the state of origin which [is] responsible for offering support to the needy’.4 While nationality has gradually been replaced by the condition of territoriality in social security law, the principle has never been fully accepted in the area of social assistance. The two principles are rather intertwined (at least in almost all European countries) where there are links

* BA (Stellenbosch) LLB (Cape Town) LLM SJD (Harvard). Professor, Faculty of Law, University of Stellenbosch. I

would like to thank the two anonymous reviewers for their very helpful comments. I also acknowledge a special debt to Marius Olivier – conversations with him have shaped much of this paper.

1 See Ockert Dupper, ‘The Human Rights of (Irregular) Migrants: An International Regional and South African Perspective’ (Pt 1) (2010) 2 International Journal of Social Security and Workers Compensation, 61.

2 See, for example, the discussion of the UN Migrant Workers Convention in part 1, ibid. 3 For migrants, the absence of a nationality condition implies that they can be integrated into the social insurance

schemes of the host-State. However, migrants nevertheless experience disadvantages in claiming social insurance benefits – disadvantages resulting from the specific legal requirements which may exist in national legislation. These include reduced pension rights as a result of irregular insurance records, problems in accessing benefits abroad, and many others. The solution to these problems can be alleviated by national legislative efforts, but in the end the realisation of effective solutions requires the linking together of national social security schemes on the basis of international agreements. The point is, however, that in principle, nationality has not been a barrier to the extension of social insurance rights to migrants in a regular situation. See G Vonk ‘Migration, Social Security and the Law: Some European Dilemmas’ (2002) 3 European Journal of Social Security 315, 319. In a recent study of selected European countries, it was noted that where social security benefits are based on contributory payments, equal treatment between nationals and migrants is normally ensured. See Ryszard Ignacy Cholewinski The Legal Status of Migrants Admitted for Employment: A Comparative Study of Law and Practice in Selected European States (Council of Europe, 2004) 84.

4 Vonk ibid at 320.


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between social assistance and the legality of residence.5 This means that, in practice, usually only those with permanent residence status qualify for social assistance.6 While some countries simply deny access to social assistance to undocumented migrants, other countries only recognise entitlement to certain forms of minimal aid.7 However, most countries follow an ‘in between approach’ in which some (but not all) social assistance benefits are granted to irregular migrants.8 These benefits usually include non-pecuniary services such as food, clothing, housing as well as assistance benefits for children and minors.9

International law does little to improve the position of undocumented or irregular migrants in these instances, and social assistance is also largely excluded from international coordination treaties. For instance, Convention 97 (Migration for Employment Convention (Revised), 1949) specifically allows countries, in their national laws or regulations, to prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds.10 Extending social assistance to migrant workers has therefore been less straightforward than the extension of social insurance benefits. In most cases, migrant workers are excluded from benefits paid wholly or partly out of public funds, with those in an irregular situation bearing the brunt of this policy decision. While few would deny a country the right to establish a minimum period of residence as a precondition for the receipt of social assistance benefits, it must be acknowledged that migrants pay taxes from the moment of their arrival in the host country, thereby contributing to the financing of the social security system. As the ILO notes, account should be taken of the fact that ‘the effective participation of migrant workers in the financing of national social security programmes is not limited to those contributions which may be deducted from wages’.11 Excluding migrant workers entirely from all tax-funded benefits is a refutation of this contribution, and violates principles of social justice and fairness. Many countries acknowledge this contribution by extending some social assistance benefits to both regular and irregular migrants. However, this is done haphazardly, and, being dependent on national law, inevitably differs from country to country. In the absence of international guidelines, this will continue to be the case. Nonetheless, as we have seen, significant protection has been extended to irregular migrant workers at regional level. The Council of Europe has accepted that irregular migrants who have made social insurance contributions should be entitled to benefit from those payments or at least be repaid the sums contributed, for example if expelled from the country. In addition, social security in the form of social assistance should not be denied to irregular migrants where necessary to alleviate poverty and preserve human dignity. This, as we have seen, may include access to non-pecuniary social assistance benefits in kind, such as food, clothing and housing.

What is the current state of affairs in South Africa? South Africa’s social security system is characterised by a strict distinction between social insurance and social assistance.12 Social insurance usually refers to earned benefits of workers and their families and is often linked to

5 As Vonk ibid at 321 points out, most States require legal residence for the right to social assistance, while

immigration law may make the legality of residence dependent upon the condition that the foreigner does not rely upon public funds.

6 E.g., in Germany, the child benefit and the payment for raising children are only available to migrants in possession of a residence permit, but not those holding a temporary residence title. In the United Kingdom, Immigration Rules prevent migrant workers from accessing non-contributory or means-tested benefits (e.g., income-based job seeker’s allowance and income support, housing benefit and council tax benefit, family credit, child benefit, and disability allowances). See Cholewinski above n3, 26, 39.

7 See Vonk above n3, 329. 8 One example is that of the Netherlands where, in terms of the so-called ‘Linking Act’ (Koppelingswet), irregular

migrants have since 1998 been fully excluded from all public services (secondary or higher education, housing, rent subsidy, facilities for handicapped persons, health care and all social security benefits, including national assistance). However, legal aid, emergency health care and education for children to the age of eighteen years remain accessible to all migrants, including irregular ones. See Paul Minderhoud ‘The Dutch Linking Act and the Violation of Various International Non-Discrimination Clauses’ (2000) 2 European Journal of Migration and the Law 185,186-187.

9 See Paul Schoukens and Danny Pieters, ‘Exploratory Report on the Access to Social Protection for Illegal Labour Migrants’ (Council of Europe, 2004) 11-12.

10 Art 6(b)(ii). 11 International Labour Organization, Introduction to Social Security (ILO, 1989) 159. 12 M P Olivier and E R Kalula ‘Scope of Coverage’ in M P Olivier et al Social Security: A Legal Analysis (LexisNexis

Butterworths, 2003) 127.

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formal employment.13 Social assistance is financed through taxes, regulated by legislation and is the exclusive responsibility of the state.14 Social relief forms part of the social assistance branch of the South African social security system, and entails short-term measures undertaken by the State, and private institutions, to assist persons during individual or community crises that have caused the persons or communities to be unable to meet their most basic needs.

Scope of coverage: Social insurance The South African social insurance system covers mostly people in formal employment.15 The self-employed, the informally employed, and several categories of the atypically employed are for all legal purposes excluded from the South African social insurance system – with the notable exception of the Road Accident Fund scheme.

Apart from some exceptions for foreigners with permanent residence status, non-nationals are generally excluded from social security protection in South Africa.16 The exclusion of migrants in an irregular situation from mainstream social insurance and social assistance benefits is not uncommon. It is generally accepted that non-citizens who are in a country irregularly may be treated differently from citizens and lawful residents.17 This differentiating treatment is also evident in the sphere of social insurance in South Africa. For example, irregular (‘illegal’) non-citizens are excluded from the ambit of the Road Accident Fund Act18, meaning that they are unable to claim compensation from the Fund for any loss or damage suffered as a result of any bodily injuries or death caused by the negligent driving of motor vehicles in South Africa.19 In general, irregular migrants are excluded from social insurance schemes in South Africa. This includes both unemployment insurance as well as workers’ compensation. The reason, as Olivier and Guthrie point out, is that a person who is not in possession of a work permit as required by section 19 of the Immigration Act20 is not an employee for labour law and, one could add, social security law purposes (for purpose of bringing a case before the labour law adjudicating institutions21), as no valid contract of employment exists and such a person cannot be understood to be ‘an employee’.22 Both the Unemployment Insurance Act23 (UIA) as well as the Compensation for Occupational Injuries and Diseases Act24 (COIDA) extends benefits only to those who qualify as ‘employees’.25

In the US Supreme Court decision in Hoffman Plastic Compounds v. National Labor Relations Board,26 the Court refused to extend labour law protection to irregular migrants. The

13 Social insurance contingencies are regulated by individual pieces of legislation. It consists of retirement schemes,

health insurance, workmen’s compensation, unemployment insurance and the Road Accident Fund (RAF). Only the RAF is not employment based. It is established under the Road Accident Fund Act (RAFA) 56 of 1996. The Fund, which is primarily funded from a compulsory fuel levy, pays out compensation to a third party for any loss or damage suffered as a result of any bodily injuries or death, caused by the negligent driving of motor vehicles.

14 A number of social grants are available, including an old-age grant, a disability grant, a foster care grant, a care-dependency grant and a child support grant. See the Social Assistance Act 13 of 2004.

15 Notably compensation for workplace injuries and diseases and unemployment insurance. 16 For example, non-citizens with permanent resident status are entitled to workers compensation in the event of an

accident or disease (see See Compensation for Occupational Injuries and Diseases Act 130 of 1993). In terms of the Unemployment Insurance Act (63 of 2001), they will be entitled to benefits, if they are retrenched, become ill or pregnant, or adopt young children.

17 M Olivier and G Vonk (eds), Comparative Review of the Position of Non-Citizen Migrants in Social Security’ (Report for the South African Treasury, 2004) 63.

18 Road Accident Fund Act 56 of 1996. 19 Olivier and Vonk above n17, 41. 20 13 of 2002. 21 Moses v Safika Holdings (Pty) Ltd 2001 22 ILJ 1261 (CCMA); Vundla v Millies Fashions 2003 24 ILJ 462

(CCMA); Lende v Goldberg 1983 2 SA 284 (C); Georgieva-Deyanova v Craighall Spar 2004 (9) BALR 1143 (CCMA); Maila v Pieterse 2003 (12) BALR 1405 (CCMA) see, however, Mackenzie v Paparazzi Pizzeria Restaurant obo Pretorius 1998 BALR 1165 (CCMA).

22 M Olivier and R Guthrie ‘Extending Social Security Protection to Non-Citizen Workers, in Particular in the Area of Employment Injuries and Diseases: The Quest for Developing a Rights-Based Approach’‘ (paper presented at the 7th International Conference on Work Injuries Prevention, Rehabilitation and Compensation, Hong Kong, 27-29 June 2006) 10.

23 63 of 2001. 24 130 of 1993. 25 Or a similar term used, such as ‘contributor’: see section 2(1) of the UIA of 1966 and the similarly worded provision in the UIA of 2001. See also section 1 of COIDA. 26 535 U.S. 137 (2002).


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majority of the court27 held that the labour laws invoked by the worker should not be enforced where they ran counter to the policies of the Immigration Control and Reform Act of 1986. Even though the court did not decide that the worker in question had no rights, it nevertheless expressed the view that workers should not be encouraged by the courts to make claims where they are working contrary to immigration laws. In other words, immigration laws took precedence over labour laws (and, by extension, social security laws). The approach adopted by the majority of the Court in Hoffman Plastic Compounds is problematic for at least two reasons. The first is that by excluding irregular migrants from workers’ compensation compels workers to seek remedies against employers in tort (or delict). This would run counter to the underlying basis for the workers compensation scheme generally, which is premised on the idea that employers would provide a secure and reliable system of statutory benefits whilst being given the protection from tort action from workers.28 In addition, it may encourage unscrupulous employers to employ irregular migrants on inferior terms and conditions, knowing that their maltreatment would not attract legal sanction.

Within a year of the U.S. Supreme Court decision, both the Organization of American States Inter-American Court of Human Rights and the International Labour Organization (ILO) issued contrary opinions, affirming equal labour and employment rights for irregular migrants. In an advisory opinion,29 the Inter-American Court of Human Rights held that the international right to equality before the law requires that all worker protection be equally granted to unauthorized as well as all other workers.30 In 2003, in response to a complaint filed by the AFL-CIO and the Confederation of Mexican Workers, the International Labour Organization Committee on Freedom of Association ruled that the decision in Hoffman Plastic Compounds violated the international right to freedom of association.31 In the same year, the United Nations Special Rapporteur on the Rights of Non-Citizens issued a report reaching the same conclusion.32 In 2004, the United Nations Committee on the Elimination of Racial Discrimination issued an interpretation of the International Convention on the Elimination of all Forms of Racial Discrimination holding that the Convention stands for the same principle: equal labour and employment rights for irregular non-citizen workers vis-a-vis citizen workers.33 In the area of workers’ compensation in particular, this rights-based approach to the position of irregular migrants requires treating injured workers without regard to their contractual status but having due regard to their needs following injury. This means that all workers (irrespective of status) should be entitled to rehabilitation and income support following injury.

The recent South African Labour Court decision in Discovery Health Limited v CCMA & others34 supports the international law-position set out above, and implicitly rejects the approach adopted by the US Supreme Court in Hoffman Plastic Compounds. In Discovery Health, the court extended labour rights to a foreign national whose work permit had expired. The court noted that, although the Immigration Act35 prohibits the employment of foreign workers without work permits, the only consequence of doing so is that the employer is guilty of a criminal offence. This position rejects a line of decisions that held that a contract is void even if only one party is subject to a criminal penalty.36 In the new constitutional era, Courts are obliged to interpret all legislation in a way that would ‘promote the spirit, purport and objects of the Bill of Rights.’37 In

27 It was a narrow 5-4 decision. 28 Olivier and Guthrie ‘Extending social security protection’ above n22, 11. 29 Advisory Opinion OC-18, 2003 Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003). 30 This opinion is discussed in more detail in part 4, infra. 31 Complaints Against the Government of the United States presented by the American Federation of Labor and the

Congress of Industrial Organizations (AFL-CIO) and the Confederation of Mexican Workers (CTM), Case No. 2227, GB.288/7 paras. 551-613 (November 2003), available at http://www.ilo.org/public/english/standards/relm/gb/docs/gb288/pdf/gb-7.pdf.

32 David Weissbrodt, Special Rapporteur, Final Report on the Prevention of Discrimination: The Rights of Non-Citizens, 55th sess, UN Doc. E/CN.4/Sub.2/2003/23 (26 May 2003).

33 UN OHCHR Committee on the Elimination of Racial Discrimination, General Recommendations, http://www2.ohchr.org/english/bodies/cerd/comments.htm 34 Discovery Health Limited v Commission For Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ

1480 (LC). 35 13 of 2002. 36 See, for instance, Standard Bank v Estate Van Rhyn 1925 AD 266; Lende v Goldberg (1983) 4 ILJ 271 (C) 37 Section 39(2).


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interpreting the provisions of the Immigration Act, the Court must ensure that it does not unduly limit the Constitutional right of ‘everyone’ to ‘fair labour practices’.38 In this regard, the Labour Court reached the opposite conclusion from that arrived at by the US Supreme Court in Hoffman Plastic Compounds. In the latter decision, the court held that the extension of labour rights to irregular migrants would undermine the purpose of immigration legislation, which is to discourage illegal immigration. In Discovery Health, the court held that the extension of rights to irregular migrants would do the opposite:

If s 38(1) [of the Immigration Act] were to render a contract of employment concluded with a foreign national who does not possess a work permit void, it is not difficult to imagine the inequitable consequences that might flow from a provision to that effect. An unscrupulous employer, prepared to risk criminal sanction under s 38, might employ a foreign national and at the end of the payment period, simply refuse to pay her the remuneration due, on the basis of the invalidity of the contract. In these circumstances, the employee would be deprived of a remedy in contract, and … she would be without a remedy in terms of labour legislation. The same employer might take advantage of an employee by requiring work to be performed in breach of the BCEA [Basic Conditions of Employment Act], for example, by requiring the employee to work hours in excess of the statutory maximum and by denying her the required time off and rights to annual leave, sick leave and family responsibility leave. It does not require much imagination to construct other examples of the abuse that might easily follow a conclusion to the effect that the legislature intended that contract be invalid where the employer party acted in breach of s 38(1) of the Act. This is particularly so when persons without the required authorisation accept work in circumstances where their life choices may be limited and where they are powerless (on account of their unauthorised engagement) to initiate any right of recourse against those who engage them.39

Instead of undermining the purpose of the Immigration Act, it would in fact strengthen it. If employers were aware that foreign nationals who do not have work permits had recourse to the rights contained in labour legislation, they would be less likely to breach immigration legislation by entering into contracts with irregular migrants.40 A contrary interpretation would frustrate the primary purpose of section 23(1) of the Constitution, which is to extend the right to fair labour practices to ‘everyone’. This meant that the validity of the contract was not affected by the fact that the employer breached the Immigration Act.

However, the court even went one step further. It held that even if the contract was invalid because the employer had breached the provisions of a statute (as determined in some pre-Constitutional decisions), this did not deprive the irregular migrant of the status of an ‘employee’ for purposes of labour legislation. This is because the definition of ‘employee’ in the Labour Relations Act (LRA) must be interpreted against the background of the Constitutional provision that grants the right to fair labour practices to ‘everyone’. This provision potentially extends protection ‘to other contracts, relationships in terms of a person (sic) performs work or provides personal services to another.’41 In other words, a contract of employment is not a sine qua non for acquisition of the status of ‘employee’.

What are the implications of this judgment? The court rejected the conventional view that a person not in possession of a work permit as required by the Immigration Act is not ‘an employee’ for labour law and social security law purposes as no valid contract of employment

38 Section 23(1). 39 Par 30. 40 Par 33. Studies indicate that in South Africa, migrant workers, particularly irregular migrants, are extremely

vulnerable to abuses at work because of their precarious legal situation. Most of the time, they will not try to enforce their rights nor seek redress as this would expose them to the risk of being arrested and deported. There are also indications that some employers deliberately seek undocumented migrants, who are considered to be more ‘docile’ and ‘hard-working’. In some instances, employers threaten to report irregular migrants to the police if they do not ‘behave’ or if they seek redress for an abuse. In rare but regular cases, employers in commercial agriculture and construction even reported their workers to immigration officers just before payday. See International Federation for Human Rights[FIDH] Surplus People? Undocumented and Other Vulnerable Migrants in South Africa (2008) 30.

41 Discovery Health Limited v Commission For Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1480 (LC), par 41.


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exists.42 In Discovery Health, the court held that the employment of irregular migrants in breach of immigration legislation does not affect the validity of the contract of employment. Even if this view is incorrect, the court held that in light of the Constitutional provision that extends fair labour practices to ‘everyone’, a valid and enforceable contract of employment is not a necessary requirement of the statutory definition of ‘employee’. Even though Discovery Health concerned the definition of ‘employee’ in terms of the Labour Relations Act, it is submitted that its impact will also be felt in other fields where similar definitions are utilised, including in the area of social insurance.

It is submitted that irregular migrants in South Africa will be entitled to workers compensation under both COIDA and ODMWA (Occupational Diseases in Mines and Work Act). In the light of Discovery Health, they are considered to be ‘employees’ and therefore entitled to the protection offered by the legislation. In determining the amount of benefits, at least one court in the United States has suggested that the benefits should be payable at the rate of equivalent wages in their country of origin. In Balbuena et al v IDR Realty,43 (a tort case for negligence), the New York Supreme Court held that the plaintiff was to be compensated for future lost earnings on the basis of what he could have earned in his native Mexico. The rationale behind this approach is that irregular migrants do not have the (legal) ability to earn in the host country, but do have an ability to earn in their country of origin. However, this decision was overturned on appeal.44 The criticism of basing the amount of compensation on the equivalent amount the claimant would earn in the country of origin is comprehensively set out by Olivier and Guthrie:

There are a number of criticisms of this approach. One is that evidence about rates of pay of a worker’s home country may be difficult to provide to a court, and an unduly harsh burden to place a plaintiff worker under. This is particularly so where the worker is from a country where there is no comparable job or equivalent position to that which he or she was in at the time of the injury. Further, providing compensation at much reduced rates, equivalent to those of a worker's home country, may further marginalise the illegal worker, who is then faced with the prospect of living in a first world country while injured, yet possibly trying to subsist on third world compensation benefits. It is doubtful whether a "second tier" rate of compensation benefits would necessarily remove the incentive for unscrupulous employers to take advantage of illegal workers. Employers seek out and hire illegal workers, without necessarily checking immigration status. For the illegal worker to then be in effect penalised by only being compensated at a much lower rate would compound the discrimination suffered by the illegal worker.45

Proponents of basing the amount of compensation on the equivalent country of origin-rate argue that such an approach would ensures that workers, if injured, do not receive a windfall gain, but rather are paid at the comparable rate of their country of origin. This arguably reduces the incentive for illegal workers to flout immigration controls and seek work where they are unauthorised to do so. However, it is submitted that the deterrent effect of this policy is questionable. It seems unlikely that the remote possibility of being injured at work and then only being compensated at lower rates than those of the ‘host’ country would be sufficient deterrent to prevent irregular migrants from seeking work.46

Remitting the amount of compensation when a worker returns to his or her country of origin should also receive attention. South Africa arguably has the most developed employment injury payment arrangements in the southern African region, where benefits may be remitted through bilateral agreements or through the mines’ major recruitment agency, The Employment Bureau of Africa (TEBA), in those countries where it has offices. However, it has been remarked that government corruption in the receiving countries often prevents the payment from reaching the

42 See N Smit ‘Employment Injuries and Diseases’ in MP Olivier et al (eds) Social Security: A Legal Analysis

(LexisNexis Butterworths 2003) 472. 43 Balbuena et al v IDR Realty LLC et al [13 AD3d 285] 2003. 44 Balbuena v IDR Realty LLC [6 NY3d 338] 2006. 45 Olivier and Guthrie above n22, 21. 46 Ibid 21, 22.


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actual beneficiaries.47 As Smit argues, ‘major reforms are necessary in the field of institutional arrangements and follow-up investigations to ensure enforcement and compliance with remittance agreements.’48 This call for action takes on particular significance in the light of the Discovery Health judgment, which potentially increases the number of beneficiaries who may have to receive their compensation outside South Africa. In the absence of bilateral agreements (or applicable TEBA arrangements), a lump sum in lieu of monthly payments should be considered. This should apply in respect of all degrees of permanent or temporary disablement, not only in respect of permanent disablement of 30% or less as is currently the case.49 The reality is that irregular migrants who claim compensation may face deportation once their status become known, and should not be deprived of the benefit should they be deported to a country with whom no bilateral arrangement in respect of remittances exist. Payment of a lump sum may be the most equitable solution under these circumstances.

Unlike workers’ compensation, which is funded from employer contributions paid to the Compensation Fund, unemployment insurance is contributory scheme to which both employees and employers contribute.50 The question is whether this difference is significant.

In general, there seems to be some differentiation between schemes funded entirely from employer contributions where employers are under an obligation to make such contributions even if they employ irregular migrant workers (in particular schemes covering occupational injuries and diseases) and schemes where the contributions are drawn from both the employer and employees, and where the benefits are explicitly linked with lawfully performed work (such as unemployment insurance schemes).51 In the case of the former, workers (irrespective of their status) should be entitled to the benefits (as was argued above). In the case of the latter, there is either no entitlement or a limited entitlement, which in practice amounts to the return of the contributions that the irregular migrant may have made.

There is considerable support for the latter position. As Cholewinski argues: ‘It is strongly arguable that if irregular migrants make … [social insurance] contributions, they should be entitled to social security benefits or at least a repayment of the contributions made.’52 This view corresponds with the position adopted by the Council of Europe, and one which they invite all their member states to implement.53 Support for this can also be found in Article 27(2) of the UN Migrant Workers Convention.54 Even though the provision is weakly worded on the whole, it appears that the intention was to extend some social security protection to irregular migrants, at least to those benefits to which they have contributed.55 Article 9(1) of the ILO Convention No. 143 protects the social security rights of migrant workers arising out of ‘past employment’. It appears that the wording ‘past employment’ refers to past periods of legal as well as illegal employment.56 Finally in this regard, ILO Recommendation 151 stipulates in par 34(1)(c)(ii) that all migrant workers who leave the country of employment should be entitled to ‘reimbursement of any social security contributions which have not given and will not give rise to rights under national laws or regulations or international arrangements’.

The import of these international and regional guidelines is that irregular migrants who have made contributions to unemployment insurance in South Africa should at least be entitled to the

47 Elaine Fultz and Bohdi Pieris, Employment Injury Schemes in Southern Africa: An Overview and Proposals for

Future Directions (ILO/SAMAT (Southern Africa Multidisciplinary Advisory Team) Policy Paper No. 7) (ILO Zimbabwe 1998) 19-20.

48 See N Smit above n42, 473. 49 See Sch 4, items 2, 3, 4 and 5 and s 49 COIDA. 50 S 5(1) of the Unemployment Insurance Contributions Act 4 of 2002. 51 See Ryszard Cholewinski Study on Obstacles to Effective Access of Irregular Migrants to Minimum Social Rights

(Council of Europe, 2005) 42. 52 Ibid 40. 53 Council of Europe Human Rights of Irregular Migrants (Doc 10924, 4 May 2006) par 70. See part 3, supra. 54 See discussion in part 4, supra. 55 Ibid. Also see Cholewinski Study on Obstacles to Effective Access of Irregular Migrants to Minimum Social Rights,

above n51, 41. 56 See Nilim Baruah and Ryszard Cholewinski, Handbook on Establishing Effective Labour Migration Policies in

Countries of Origin and Destination (OSCE (Organisation for Security and Co-operation in Europe), IOM (International Organisation for Migration) and ILO (International Labour Office) 2006) 156: ‘This provision particularly must be understood for the purpose of acquiring rights to long-term benefits. Within this context, it appears that the wording "past employment" refers to past periods of legal as well as illegal employment.’


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return of their contributions.57 As we have seen in this report, there are certainly legitimate reasons for differentiating between irregular migrants and those in a regular situation, and for extending fewer benefits to the former. This report therefore does not advocate treating irregular migrants who have made contributions to the Unemployment Insurance Fund (UIF) and who become unemployed in the same manner as regular contributors. However, in the light of the international and regional instruments referred to above, it will be difficult to justify depriving them of the contributions they have actually made while employed.

Scope of coverage: Social assistance In Khosa and Others v The Minister of Social Development and Others,58 the Constitutional Court has held that permanent residents may not be discriminated against vis-a-vis citizens when it comes to access to social assistance. As a result of this judgment, social assistance in South Africa is now available to permanent residents and their children. To access these grants, beneficiaries must comply with a means test. The Constitutional Court made it clear that non-citizens who have temporary resident status are not entitled to the same level of protection as citizens. Presumably, those who find themselves in an irregular situation have even less tenuous links with South Africa and would thus have less of an entitlement to tax-funded benefits than asylum seekers and refugees.

It has already been pointed out in this report that in general, extending social assistance to migrant workers has been more problematic than the extension of social insurance benefits. In most cases, migrant workers are excluded from benefits paid wholly or partly out of public funds, with those in an irregular situation bearing the brunt of this policy decision. While few would deny a country the right to establish a minimum period of residence as a precondition for the receipt of social assistance benefits, it must be acknowledged that migrants contribute to the financing of the social security system through the payment of taxes. Excluding migrant workers entirely from all tax-funded benefits is a refutation of this contribution, and violates principles of social justice and fairness. Many countries acknowledge this contribution by extending some social assistance benefits to both regular and irregular migrants, particularly in the form of emergency health care.59

The recently adopted Code on Social Security in the SADC provides that illegal residents and undocumented migrants should be provided with basic minimum protection and should enjoy coverage according to the laws of the host country.60 Despite generally restrictive regulation and policy implementation vis-a-vis irregular migrants in South Africa, the White Paper on International Migration61 recognises that there is no constitutional basis to exclude, in toto, the application of the Bill of Rights on the basis of the status of a person while in South Africa, including irregular migrants.62 One could, therefore, conclude that even irregular non-citizens in South Africa are constitutionally entitled to core social assistance. This does not necessarily imply monetary support, as long as basic amenities are made available.63 This position is in line with international best practice, where social assistance benefits often take the form of non-financial services or benefits in kind, such as food, clothing and housing.64 For example, the Council of Europe urges its member states to provide social insurance in the form of social assistance where such assistance is necessary ‘to alleviate poverty and preserve human dignity’.65

57 A recent bilateral agreement (signed in June 2004) between the United States and Mexico (the U.S.-Mexico Social

Security Totalization Agreement) has even gone one step further. In terms of the agreement, anyone who had made contributions to the US Social Security Administration prior to 2004 would have a legal entitlement to benefits associated with these contributions, independent of residence status and work permit status. (See Marius Olivier, ‘Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)’ (Report commissioned by the World Bank, 2009) 91). However, because of opposition to the agreement, it has not yet been submitted to the US Congress for approval, which is required to give legal effect to the agreement.

58 Khosa and Others v The Minister of Social Development and Others; Mahlaule and Another v The Minister of Social Development and Others 2004 (6) BCLR 569 (CC).

59 See discussion in part 4, infra. 60 Article 17(3). 61 Of 1999: see GN 529 in Government Gazette 19920 of 1 April 1999. 62 Ibid White Paper on International Migration par 2.2 - 2.4. 63 Olivier, Social Protection for Non-Citizens, above n 57,17. 64 Cholewinski, above n57, 42. 65 Council of Europe, above n 53, par 67.


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What would this ‘core social assistance’ to irregular migrants in South Africa entail? Social relief payments in South Africa, that is the temporary rendering of material assistance, is aimed at the alleviation of both chronic and transient poverty.66 It entails short-term measures undertaken by the state and other private organisations to assist persons to meet their most basic needs during individual or community crises. It takes the form of cash, vouchers, food, and even rental payments.67 It is submitted that irregular migrants should qualify for and be entitled to temporary social assistance should they find themselves in emergency situations. It is also the one form of relief where the provision of identity documentation (which irregular migrants by definition lack) is not a requirement for relief.68 However, studies indicate that the provision of social relief to destitute non-citizens has been haphazard and inconsistent.69 It is recommended that the Department of Social Development confirm the eligibility of irregular migrants to emergency social relief, and circulate a clear policy in this regard in order to ensure consistent implementation thereof around the country.

However, a distinction has to be drawn between irregular adult migrants and children in an irregular situation — whether accompanied or unaccompanied. Studies indicate that in South Africa, increasing numbers of women and children are amongst undocumented migrants, and that a growing number of children are entering South Africa through the Zimbabwean and Mozambican border posts.70 International and regional instruments confirm that children are a particularly vulnerable category of people (in addition to women, the disabled, and the elderly) and this justifies their differential treatment from adults in an irregular situation. For example, the UN Convention on the Rights of the Child provides in Article 2 that the rights set forth in the Convention are applicable to all children regardless of their status. In addition, the European Committee of Social Rights found that national measures in France limiting the access of children of irregular migrants to health care provision violated the European Social Charter’s provision concerning protection of and assistance to children and young persons.71 The Committee found it difficult to apply the restrictive personal scope of the Charter to a situation which involved the denial of the fundamental right to health care to a particularly vulnerable group of persons, such as children. The Committee reasoned that it was necessary to interpret limitations on rights restrictively in order to preserve the essence of the right (in this case, the right to health) and to achieve the overall purpose of the Charter. The restriction in this case impacted on the very dignity of the human being and adversely affected a particularly vulnerable group of persons, namely children, who were exposed to the risk of having no medical treatment.72 The recently adopted Resolution of the Council of Europe reiterates that children are in a particularly vulnerable situation and that they should be entitled to social protection which they should enjoy on the same footing as national children.73

In the Khosa decision, the Constitutional Court confirmed that the vulnerability of children necessitates differential treatment. In its judgment, the court had to deal with the argument that the government should be able to use the non-availability of social grants as a tool to regulate immigration (in the sense that this could be seen as part of the immigration policy of the state that aims to exclude persons who may become a burden on the state and to encourage self-sufficiency). The court rejected this contention and pointed out that the state could develop careful immigration policies in order to ensure that those people who are admitted will not be a burden on the state. In addition, the Court stressed that this particular case concerned the aged and children and that they are unlikely to provide for themselves, meaning that the self-sufficiency

66 See L G Mpedi, G Y Kuppan and M P Olivier ‘Welfare and Legal Aid’ in M P Olivier et al (eds) Social Security: A

Legal Analysis (LexisNexis Butterworths 2003) 205. 67 Ibid. 68 CoRMSA (Consortium for Refugees and Migrants in South Africa) Protecting Refugees, Asylum Seekers and

Immigrants in South Africa (2008) 47. 69 Ibid. The same study indicates that of the 257 non-citizens identified in the study who had received material

assistance from an institution, only seven had received assistance through official government channels. The rest had received assistance from NGOs, religious organisations (churches, mosques, etc), and refugee self-help organisations.

70 International Federation for Human Rights, Surplus People above n40, 12. 71 Article 17 of the Charter. 72 International Federation of Human Rights Leagues (FIDH) v. France, European Committee of Social Rights,

Complaint No. 14/2003 (2004). 73 Resolution 1509 of 27 June 2006 (Doc.10924) par 13.3 (emphasis added).


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argument advanced by the government does not hold up in such a case.74 Nonetheless, the principle that children, because of their vulnerable status, should generally be afforded different treatment from that of adults is not always being adhered to in South Africa. For example, human rights groups have pointed out that undocumented children are treated like adults by law-enforcement personnel in contravention of the South African Constitution and Child Care Act.75 In the so-called Lindela case,76 the High Court specifically dealt with the state's obligation (in terms of the Child Care Act) to treat unaccompanied foreign children as children in need of care through the formal child protection system as opposed to processing them through the immigration system. The Court rejected the government’s argument that the Child Care Act does not apply to unaccompanied foreign children and prohibited the Department of Home Affairs to detain any further children in Lindela. It issued a supervisory interdict, which compelled government departments within the so-called social cluster of departments to address the problem collectively, to coordinate action and submit regular progress reports on specified dates to all parties concerned. It has been argued that this judgment effectively extends social assistance support to unaccompanied foreign children.77 This includes the child-support grant, the foster care grant78 and the care dependency grant. It is submitted that in the light of South Africa’s obligations under the UN Convention on the Rights of the Child (which South Africa has ratified), this should also apply to accompanied foreign children of irregular migrants who may be in need. Article 26 of the Convention provides that ‘States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.’ It is clear that this right applies to ‘every child’ irrespective of status. It must be mentioned that, similar to section 27 of the South African Constitution, which guarantees everyone (including children) the right to appropriate social assistance but qualifies it with reference to the state’s available resources, the Convention also provides that ‘(w)ith regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources …’.79 This means that the onus will be on the state to prove that the extension of the grant to children in an irregular situation will put particular strain on the state’s available resources.

It is submitted that this will be a particularly difficult onus to discharge. In Khosa, the State had argued that the extension of social grants to permanent residents would impose ‘an impermissibly high financial burden on the state.’80 In reviewing the reasonableness of citizenship as a criterion of exclusion from social grants in terms of section 27(2), the Court was confronted with a lack of evidence as to ‘the numbers [of persons] who hold permanent resident status, or who would qualify for social assistance if the citizenship barrier were to be removed.’81 However, based on certain assumptions, the Court was able to conclude that the cost of including permanent residents in the system would be only a small proportion of the total cost of social grants.82 Thus the State was unable to produce convincing evidence to support its argument that the costs of extending social grants to permanent residents would impose an excessively high financial burden on it. Similar considerations may be at play in the case of extending social assistance to children of irregular migrants. Given the significant constraints facing irregular migrants when exercising their rights (such as the legitimate fear of arrest and deportation), it is unlikely that the number of potential beneficiaries will be significant and that the extension of social assistance to them will

74 Khosa above n58, par 65. 75 International Federation for Human Rights Surplus People? above n40, 12. 76 Centre for Child Law & Another (Lawyers for Human Rights) v Minister of Home Affairs & Others 2005 (6) SA 50

(T)) (named after the (notorious) holding camp for refugees in the Gauteng province). 77 Olivier Social Protection for Non-Citizens, above n57, 44. In Khosa, decided one year earlier, the court also

extended social assistance to permanent residents and their children, above n58. 78 The foster care grant requires that both the foster parents and the foster child be resident in South Africa, meaning

that citizenship requirement applicable in the case of other grants is in any case not relevant here. 79 Article 4. 80 Para 60. 81 Para 61. 82 Approximately one fifth of the projected expenditure on social grants for permanent residents is in respect of child

grants. The unconstitutionality of the citizenship requirement in respect of the child support grant was already conceded by the State. ‘The remainder reflects an increase of less than 2% on the present cost of social grants (currently R26.2 billion) even on the higher estimate.’ Ibid para. 62.


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place an ‘excessively high financial burden’ on the state. In addition, one of the important principles emerging from the manner in which our courts have enforced socio-economic rights is the particular importance that has been placed on vulnerable groups. The Grootboom83 ,TAC and Khosa decisions illustrate that the Court has been willing and capable of reviewing budget allocation decisions when these decisions impact negatively on the most desperate and vulnerable in society. In these cases it held that government’s unwillingness to expand access to housing, health care and social grants to vulnerable group was unreasonable. It is submitted that the courts will generally be more favourably disposed to interfering in the State’s resource allocation priorities in cases where disadvantaged groups (such as children) are deprived of access to essential social resources and services. Finally, the decisions of the Constitutional Court indicate that the Court will not readily accept a defence that there is a lack of available resources where the exclusion of individuals or groups from a government programme constitutes unlawful discrimination or a serious invasion of dignity, which arguably amounts to the denial of social assistance to undocumented children who find themselves in need.

III. LABOUR AND EMPLOYMENT RIGHTS The exploitation of irregular migrant workers around the world is common. In addition to lower wages, studies indicate that they are also deprived of benefits such as pensions and medical aid. They do not belong to trade unions, and therefore receive little protection from exploitation and are often summarily dismissed.84 One commentator describes irregular migrants as a ‘marginalised underclass who are easily open to abuse’:

Devoid of state protection, and denied any rights and entitlements, aliens look for jobs to survive. Because of their illegal status they are forced to accept employment whatever the payment, risk, physical demand or working hours involved. Exploitation of migrant labour carries the risk of social decay, with decreasing wages and deteriorating working conditions ... The creation of such a rightless class also pushes many of them into the criminal underworld, either as a more attractive option or a means of survival.85

In the South African context, it has been pointed out that migrant workers, particularly undocumented ones, are more vulnerable to abuses at work because of their precarious legal situation:

Most of the time, they will not claim their rights nor seek redress as this would expose them to the risk of being arrested and deported … . Some employers deliberately seek undocumented migrants, who are considered to be more ‘docile’ and ‘hard-worker’. In some instances, employers threaten to report them to the police if they do not ‘behave’ or if they seek redress for an abuse. In rare but regular cases, employers in commercial agriculture and construction even reported their workers to immigration officers just before payday.86

Despite the fact that Part II of the Migrants Convention, which is concerned with equality of opportunity of treatment, applies only to migrant workers who are residing lawfully in the contracting party concerned; international labour standards in principle underline that all persons in the working environment should be afforded equal treatment regardless of legal status. The recent ILO Plan of Action on Migrant Workers, adopted by the International Labour Conference in June 2004 is unequivocal in this respect:

Consistent with effective management of migration, due consideration should be given to the particular problems faced by irregular migrant workers and the vulnerability of such workers to abuse. It is important to ensure that the human rights of irregular migrant workers are protected. It should be recalled that ILO instruments apply to all workers, including irregular migrant workers, unless otherwise stated. Consideration should be given to the situation of irregular migrant workers, ensuring that their human rights and

83 Government of the Republic of South Africa and Others v. Grootboom and Others 2000 (11) BCLR 1169 (CC). 84 Brij Maharaj ‘Immigration to Post-Apartheid South Africa’ Global Migration Perspectives No. 1, (Global

Commission on International Migration, June 2004) 9. 85 Maxine Reitzes, ‘Alien issues’ Indicator South Africa (1994), 9. 86 International Federation for Human RightsSurplus People? above n40, 30.


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fundamental labour rights are effectively protected, and that they are not exploited or treated arbitrarily.87

This principle was reinforced in September 2003, when the Inter- American Court of Human Rights issued a landmark Advisory Opinion (OC-18) on the legal status and rights of undocumented migrants in response to a request by Mexico. The Court ruled, inter alia, that:

Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition. The right to work, whether regulated at the national or international level, is a protective system for workers; that is, it regulates the rights and obligations of the employee and the employer, regardless of any other consideration of an economic and social nature. A person who enters a State and assumes an employment relationship, acquires his labor human rights in the State of employment, irrespective of his migratory status, because respect and guarantee of the enjoyment and exercise of those rights must be made without any discrimination. ... In this way, the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment. On assuming an employment relationship, the migrant acquires rights as a worker, which must be recognized and guaranteed, irrespective of his regular or irregular status in the State of employment. These rights are a consequence of the employment relationship.88

The Court thus held that non-discrimination and the right to equality are jus cogens that are applicable to all residents regardless of immigration status. Hence, Governments cannot use immigration status as a justification for restricting the employment or labour rights of unauthorized workers. The Court found that Governments do have the right to deport individuals and refuse to offer jobs to people who do not possess employment documents, but held that, once an employment relationship has been initiated, unauthorized workers become entitled to all the employment and labour rights that are available to authorized workers.89

While the opinion in OC-18 does not offer any concrete basis for determining which workplace rights should be extended to irregular migrants and which not, it has been argued that the clear import of the decision, at a minimum, is that it extends to workplace protections broadly relating to work actually performed — including workers’ compensation, benefits representing worker contributions (relating to, for example, social security, unemployment compensation, or pension funds), and remedies for unfair dismissal.90 These rights may not be denied to workers performing such work and making such contributions. While the access of irregular migrants to social insurance rights such as workers’ compensation and unemployment insurance have already been referred to,91 this decision also makes it clear that irregular migrant workers should also be entitled to other labour rights such as the right not to be unfairly dismissed.

The recent Labour Court decision in Discovery Health92 has come to a similar conclusion to that of the Inter- American Court of Human Rights in OC-18. Prior to the decision in Discovery Health, it was accepted that undocumented migrant workers in South Africa were not entitled to labour law protection because they were not considered to be ‘employees’.93 The court in Discovery Health held that the fact that the Immigration Act criminalises the conduct of the employer who employs a worker in contravention of the Act94 does not impact on the validity of

87 Report of the Committee on Migrant Workers, (Report presented at the International Labour Conference 92nd sess,

Geneva, 2004) par 28 (available at http://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/pr-22.pdf). 88 Advisory Opinion OC-18/03 of 17 September 2003 requested by the United Mexican States, Juridical Condition

and Rights of the Undocumented Migrants, Series A No. 18, paras 133-134 (available from the Court’s website at http://www.corteidh.or.cr/docs/opiniones/seriea_18_ing.pdf).

89 Ibid par 8. 90 See Sarah Cleveland ‘Legal Status and Rights of Undocumented Workers: Advisory Opinion OC 18-03’ (2005) 99

American Journal of International Law 460, 464. 91 See part 4, supra. 92 Discussed in some detail in part 4, supra. 93 Moses v Safika Holdings (Pty) Ltd (2001) 22 ILJ 1261 (CCMA), Mthethwa v Vorna Valley Spar (1996) 7 (11)

SALLR 83 (CCMA). 94 Section 38(1) of the Immigration Act states that ‘(n)o person shall employ (a) an illegal foreigner; (b) a foreigner

whose status does not authorise him or her to be employed by such person; or (c) a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner's status’. [original emphasis] Section 49(3) of the


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the contract, and, even if it does render the contract invalid, the existence of a valid contract is not a necessary precondition for the acquisition of the status of an ‘employee’ in terms of the LRA.95 This means that irregular migrants are in principle entitled to the protection afforded by the LRA, which includes the right not to be unfairly dismissed,96 the right to fair labour practices and rights related to freedom of association and collective bargaining. However, the form that the relief will take in a case in which an irregular migrant relies on the rights contained in the LRA (or other labour legislation such as the Basic Conditions of Employment Act97 (BCEA)) may well be affected by the irregularity of the worker’s status. While reinstatement and re-employment are the primary remedies afforded to an unfairly dismissed employee in terms of the LRA, it may well be that these will not be an option where it is found that an irregular migrant has been unfairly dismissed. The reason is simple: ordering reinstatement or re-employment will mean that the employer will be required to act contrary to the Immigration Act and be guilty of a criminal offence. In such a case, compensation may be the only viable option.

IV. EMERGENCY HEALTH CARE The right to emergency care has been called the ‘bottom line with regard to access to social benefits for [irregular] migrant workers’.98 Irregular migrant workers therefore have (or should have) the same right to urgent medical care as regular residents (or workers) in the country.99 For example, the Convention on the rights of all migrant workers and their families specifies that ‘[m]igrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.’100 In practice, however, the manner in which the access to emergency health care is guaranteed as well as what is understood as ‘emergency care’, differs across countries. Most countries surveyed in a recent study do not question the right to emergency care.101 However, if it is felt that a person has entered the country with the sole purpose of obtaining free treatment he/she could face charges for the received care. Some countries go one step further: the

same Act states that ‘(a)nyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year, provided that such person's second conviction of such an offence shall be punishable by imprisonment not exceeding two years or a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding three years without the option of a fine. [original emphasis]

95 This is because the Constitution extends to right to fair labour practices to ‘everyone’. See section 23(1) of the Constitution.

96 The LRA defines a dismissal in section 186, inter alia, to include the termination by an employer of a contract of employment, with or without notice. The reference to a contract of employment may very well mean that while people employed on invalid contracts may be employees, they may not be able to claim that they have been unfairly dismissed if their employers repudiate their contracts of employment on the basis of their inability to discharge their obligations under that contract. However, in a recently decided case (State Information Technology Agency (SITA) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2008] 7 BLLR 611 (LAC)), the Labour Appeal Court extended the dismissal protection where it was common cause that there was no employment contract between the ‘employee’ and the ‘employer’..

97 75 of 1997. 98 Pieters & Schoukens Exploratory Report on the Access to Social Protection for Illegal Labour Migrants Paper

presented at the ISSA European Regional Meeting Migrants and Social Protection in Oslo (21-23 April 2004). 11. Ursula Kulke ‘The Role of Social security in Protecting Migrant Workers: The ILO Approach’ ” (Paper presented to the International Social Security Association Regional Conference for Asia and the Pacific, New Delhi, India, 21-23 November 2006) 5.

99 In a recent study commissioned by the Council of Europe, it is recommended that the provision of urgent or emergency medical treatment to irregular migrants should be a minimum requirement and that states should take measures to ensure that this right is recognised formally in their laws, to eliminate the practical obstacles to its enjoyment by irregular migrants, and to provide information about its availability. See Cholewinski Study on Obstacles to Effective Access of Irregular Migrants to Minimum Social Rights above n51, 76. This recommendation found its way into the resolution on the rights of irregular migrants adopted by the Council of Europe in 2006 (see par 13.2). The text was adopted by the Parliamentary Assembly of the Council of Europe as Resolution 1509 (2006) on 27 June 2006 (18th Sitting).

100 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, GA Res 45/158, UN OHCHR (18 December 1990), Article 28.

101 Exploratory Report 11.


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irregular migrant in need of urgent care can be treated by a medical doctor; however the patient is, in such a situation, obliged to refund the costs for the delivered health care. This is the case, for example, in Sweden and Turkey. In those countries, irregular migrants are thus not entitled to subsidized care.102

As far as the definition of emergency care is concerned, the authors of the report referred to above assert that there seems to be shift from a strict interpretation of urgent care (essential treatment, which cannot reasonably be delayed until the patient returns to his/her country) to a more flexible one evolving towards ‘necessary care’ on the basis of which doctors consider regular follow-ups and vaccinations also to be part of ‘urgent treatments’. In addition to such outpatient and hospital care which is urgent or otherwise essential even if continuous, there is common understanding that irregular migrants should be covered for the following: medical programmes which are preventive or which safeguard individual and collective health; maternity coverage; health coverage of minors; vaccinations foreseen by public health law; diagnosis, treatment and prevention of infective diseases; and activities of international prevention.103 This is in keeping with a more integrated concept of health care and in line with the conclusions of the United Nations Committee on Economic, Social and Cultural Rights (ICESCR) which has stated that ‘States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including ... asylum seekers and illegal immigrants, to preventive, curative and palliative health services …’. [original emphasis]104

It has been pointed out that providing health care to irregular migrants is not only in the best interests of the irregular migrant, but also benefits the host state.105 Studies indicate that the health status of irregular migrants often worsens subsequent to their arrival in the host states. This means that the exclusion of irregular migrants from health care services may undermine the effectiveness of disease prevention within the host state, in particular in respect of communicable diseases. Such policies put the whole population at risk. This means that ‘it is also in the host state’s self interest to provide effective access to health care for irregular migrants.’106 However, even when such care is available, lack of knowledge of their rights often prevent irregular migrants from benefiting from the health care available. For example,

[I]n 2004, Médecins Sans Frontières visited and interviewed 770 seasonal farm workers in Italy, 51.4% of whom were in an irregular situation and 23.4% were asylum-seekers. 40% had become ill during their first 6 months in Italy and 93% after 19 months. The most common problems identified were infectious diseases, skin problems, intestinal parasites, and mouth, throat, and respiratory infections including tuberculosis. However, 75% of the refugees, 85.3% of asylum-seekers, and 88.6% of irregular migrants were not benefiting from any health care.

The study concludes that this primarily resulted from an ‘unawareness of their rights.’107 In South Africa, section 27(1)(a) of the Constitution provides that everyone has the right to

have access to health care services. This right has been extended to refugees and asylum seekers, and includes free access to anti-retroviral treatment.108 In addition, section 27(3) of the

102 Pieters & Schoukens Exploratory Report 11. 103 Pieters & Schoukens Exploratory Report 11. 104 See UN, ESCOR [Economic and Social Council Official Record], ESC Committee, 22nd Session, Geneva, 25

April-12 May 2000, General Comment No. 14 (2000). The right to the highest attainable standards of health, UN Doc. E/C.12/2000/4 (11 August 2000) para 34.

The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN CESCR, 22nd sess, Agenda Item 3, UN Doc E/C. 12/2000/4 (11 August 2000), para 34.

105 See Sylvie Da Lomba ‘Fundamental Social Rights for Irregular Migrants: The Right to Health Care in France and England’ in Barbara Bogusz et al (eds) Irregular Migration and Human Rights: Theoretical, European and International Perspectives, (Martinus Nijhoff, 2004), 366-7.

106 Ibid. 107 The Fruits of Hypocrisy: History of Who Makes the Agriculture…Hidden, Rome, Medici Senza Frontiere Onlus,

2005 as cited in International Organization for Migration, Migration and the Right to Health: A Review of European Community Law and Council of Europe Instruments (2007) 7.

108 The Department of Health issued a directive in September 2007 that refugees and asylum seekers, including those without documentation, should have equal access to antiretroviral treatment (ART) at all public health providers. See CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa above n68, 38, 40.


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Constitution provides that ‘no one may be refused emergency medical treatment.’ This means that under South African law, everyone – regardless of nationality or legal status – is entitled to emergency medical treatment. Unlike the general right to access to health care services, the right to emergency care is not subject to the qualifications of ‘progressive realisation’ and ‘available resources’.109 The question as to what constitutes emergency medical treatment arose in the case of Soobramoney v Minister of Health, KwaZulu-Natal.110 The Court held that emergency medical treatment must be provided in the following circumstances:111 (i) there must be a sudden or unexpected event or catastrophe; (ii) this event must be of a passing nature and not continuous;112 (iii) the event must lead to a person requiring medical attention or treatment; (iv) to the extent such treatment is necessary and available, it must be provided.113 Section 27(3) is therefore included in the Constitution to ensure that

[a] person who suffers a sudden catastrophe which calls for immediate medical attention should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm.114

It is submitted that one of the important consequences of the decision is that no one who satisfies the court’s criteria can be refused treatment. In light of the split between private and public health care in South Africa, this arguably places an obligation on private health-care providers to offer emergency medical treatment to individuals even if they lack health insurance.115 However, the de facto situation in South Africa is a far cry from the norm established in the Soobramoney-decision:

According to numerous accounts, migrants find it hard to access health services and facilities, even for emergency cases. They may be faced with medical staff who keep them waiting for abnormal lengths of time, provide them with exams and treatment which are below the minimum standards, verbally abuse them, treat them with little sensitivity and attention to their pain or specific conditions, have them pay outpatient fees, or deny them access to hospitals either straightforwardly or on the claim that they do not have adequate documentation.116

However, section 27 is not the only provision dealing with a right concerning health. Section 28(1)(c) of the Constitution provides that children have the right to ‘basic health care services’ as well as to basic nutrition, shelter and social services.117 Unlike the right to health care services in section 27(1)(a), this right is not subject to the internal limitations of ‘progressive realisation’ and ‘available resources.’ The section reinforces the notion contained in international and regional instruments that children are a particularly vulnerable group, and thus require differential treatment. Section 28(1), however, must be read in context. Subsection (b) ensures that children are properly cared for by their parents or families, and that they receive appropriate alternative care in the absence of parental or family care. This means that the parents or the family of a child have primary responsibility for providing health care (and nutrition and shelter) to their children. Only if they are unable to do so, the child can turn to the state for support.118 This means that if a parent can afford medicine and other components of health care, then it is her/his duty to provide them.119 This position is in line with the manner in which the United Nation’s Committee on the

109 See sections 27(1) and 27(2) of the Constitution. 110 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC). 111 This summary is taken from David Bilchitz ‘Health’ in S Woolman (ed) Constitutional Law of South Africa (2005),

56A-17. 112 In Soobramoney, the Court excluded renal dialysis from the definition of ‘emergency medical treatment’, stating

that the term is not meant to cover ongoing treatment for chronic illnesses for the purpose of prolonging life. See Soobramoney above n 110, para 13.

113 Soobramoney ibid paras 18-21, 39, 51. 114 Soobramoney ibid para 20. 115 David Bilchitz ‘Health’ in S Woolman (ed) Constitutional Law of South Africa (2005), 56A-18. 116 International Federation for Human Rights Surplus People? Undocumented and Other Vulnerable Migrants in

South Africa above n40, 6. Also see the studies referred to in Migrant Health Forum Challenges to the Successful Implementation of Policy to Protect the Right of Access to Health for all in South Africa (Report, 3 June 2008) 6.

117 The latter rights will be dealt with separately, infra. 118 Minister of Health and others v. Treatment Action Campaign and Others 2002 (10) BCLR 1075 para 79. 119 Ibid para 76.


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Rights of the Child (UNCRC) has interpreted the Convention on the Rights of the Child, namely that the state is placed under an obligation to provide for children whose parents are unable to do so.120 The Council of Europe urges its member states to extend health care to certain vulnerable groups of irregular groups, including children, on equal terms with national children.121 Reference has already been made to the finding of the European Committee of Social Rights in International Federation of Human Rights League v. France,122 in which the Committee determined that in light of the fact that medical care is a prerequisite to the preservation of human dignity, any legislation or practice denying such treatment to a particularly vulnerable group of persons, such as children – even if those children are unlawfully present there – cannot be justified under the European Charter.

To summarise: it is clear that emergency health care (as defined in Soobramoney) is (or should be) available to irregular migrants. In respect of health care services to (irregular) children, the position seems to be that although the parent is the primary provider of health care, the state must step in when the parent is unable to provide fully for the needs of the child. It has been argued that despite the absence of the familiar internal limitations of ‘progressive realisation’ and ‘available resources’, all the socio-economic rights contained in section 28 should be read in the light of other socio-economic rights and thus subject to the same limitations.123 This means that in the absence of parental provision, health care should be extended to (irregular) children subject to all the requirements of progressive realisation and available resources. In Treatment Action Campaign (TAC), the Constitutional Court held that the failure of the government to provide universal access to anti-retroviral therapy in the public health sector to prevent mother-to-child transmissions of HIV constituted a breach of section 27 of the Constitution (the right of access to health care). However, the Court also indicated, albeit implicitly, that it would have reached the same conclusion had the matter been determined according to the state’s obligation under section 28 of the Constitution. In the court’s view, the provision of Nevirapine to prevent transmission of HIV could be considered ‘essential’ to the child.124 The needs of the children, the Court stated, were ‘most urgent’.125 The cost of the treatment was patently within the means of the state as the budget for HIV/AIDS had been substantially augmented.126 In this regard, General Comment No 14 of the Committee on Economic, Social and Cultural Rights (CESCR) is instructive. It establishes a set of core obligations in respect of the right to health, and provides, inter alia, that states should ‘ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.’127 This Comment treats core obligations as strict non-derogable obligations, emphasising that a state ‘cannot, under any circumstances whatsoever, justify its non-compliance with core obligations’.128 Thus, a state cannot attribute failure to comply with a lack of resources.129

V. EDUCATION The right to education is entrenched at both the international and regional level as a fundamental human right.130 At a minimum, these instruments stress that access to primary or elementary education should be free to all children without any distinction whatsoever.131 The Convention on

120 See Adrian Friedman and Angelo Pantazis ‘Children’s Rights’ in S Woolman (ed) Constitutional Law of South

Africa (2004) 47-11. 121 See Resolution 1509 (2006) of 27 June 2006 (18th Sitting), para 13.2. 122 Above n72.. 123 See Adrian Friedman and Angelo Pantazis ‘Children’s Rights’ in S Woolman (ed) Constitutional Law of South

Africa (2004) 47-13. 124 Minister of Health and others v. Treatment Action Campaign and Others above n118, Para 78. 125 Ibid. 126 Ibid para 120. 127 The Right to the Highest Attainable Standard of Health above n104, para 43. 128 Ibid, para 47. 129 See Charles Ngwena and Rebecca Cook ‘Rights Concerning Health’ in Danie Brand and Christof Heyns (eds)

Socio-Economic Rights in South Africa (Pretoria University Law Press, 2005) 107, 117. 130 For a list see Faranaaz Veriava and Fons Coomans ‘The Right to Education’ in Danie Brand and Christof Heyns

(eds) ibid 57, 58. 131 For example, see UDHR, Article 26; ICESCR, Article 13; UN Convention on the Rights of the Child (20

November 1989; UN Doc. A/RES/44/25) Articles 2 and 28(1)(a); UNESCO Convention against Discrimination in Education (14 December 1960; 429 UNTS 93), Article 4(a); UN Convention on Migrant Workers, Article 30.


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the Rights of the Child calls upon States Parties to ‘recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all…’.132 It further provides that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s … status’, which would include unlawful status.133 South Africa has ratified this Convention.134 Article 13 ICESCR stipulates that the right to education is to be enjoyed by ‘everyone’. There are no qualifications preventing non-nationals from benefiting from this right.135 In its General Comment on the right to education, the ESC Committee confirms that ‘the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status’.136 Although mainly concerned with civil and political rights, the European Convention on Human Rights (ECHR), as noted in part 3 above, also provides for a right to education. The first sentence of Article 2 of the First Protocol to the ECHR stipulates unequivocally that ‘[n]o person shall be denied the right to education’. When read in conjunction with Article 14 ECHR (the non-discrimination clause), this provision clearly applies on a non-discriminatory basis to both nationals and non-nationals who are within the territory of a contracting party unless there is an objective and reasonable justification for the differential treatment. The Council of Europe’s position is reflected in the resolution recently adopted on the position of irregular migrants:

All children have a right to education extending to primary school level and also to secondary school level in those countries where such schooling is compulsory. Education should reflect their culture and language and they should be entitled to recognition, including through certification, of the standards achieved.137

In South Africa, section 29(1)(a) of the Constitution provides that ‘(e)veryone has the right to a basic education…’. The obligations engendered by this section are distinguishable from the other socio-economic rights in the Constitution. As we have seen, the rights to social security and health care services, for example, are qualified to the extent that they are made subject to ‘progressive realisation’ and ‘available resources’. ‘The right to basic education … is by contrast unqualified and is therefore an absolute right’.138 As Woolman and Bishop write, ‘(b)asic education is not a good that can be made gradually available to more people “over time”’, nor is it ‘contingent on the availability of resources’.139 This is confirmed by Veriava and Coomans:

From a textual reading of section 29(1)(a), when compared to these other socio-economic rights in the Constitution, the unqualified and absolute nature of the right to basic education requires a standard of review higher than that used in respect of the qualified rights to determine the extent of the state’s obligations in respect of the right to basic education. It is submitted that the state implement measures to give effect to the right as a matter of absolute priority.140

For purposes of determining the extent of the protection afforded by section 29(1)(a), the meaning of the terms ‘everyone’ and ‘basic education’ have to be examined. In Minister of Home Affairs v Watchenuka & Another,141 the Supreme Court of Appeal (SCA) extended the meaning of ‘everyone’ to include asylum seekers. In casu, the Court struck down regulations which prohibited asylum seekers from studying in South Africa. The SCA held that it could never be reasonable or justifiable to deny education to a child lawfully in the country to seek asylum. The

132 Art 28. 133 See art 2(1). Also see UNCHR Report 33-34. 134 On 16 June 1995 (without entering any reservations). 135 In this regard, see also Article 3(e) UNESCO Convention against Discrimination in Education, which explicitly

requires states parties ‘[t]o give foreign nationals resident within their territory the same access to education as that given to their own nationals’.

136 UN, ESCOR, ESC Committee, 21st Session, General Comment No. 13, The right to education (Art. 13), UN Doc. E/C.12/1999/10 (1999), para 34 (emphasis added).

137 Para 13.6. 138 See Faranaaz Veriava and Fons Coomans ‘The Right to Education’ above n130, 62. 139 Stu Woolman & Michael Bishop ‘Education’ in S Woolman (ed) Constitutional Law of South Africa (2007) 57-10. 140 See Faranaaz Veriava and Fons Coomans ‘The Right to Education’ above n130, 63. 141 2004 (4) SA 326 (SCA).


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general prohibition on study by asylum-seekers was therefore an unjustifiable limitation on section 29(1).142 In addition, Article 27(g) of the Refugees Act143 also extends the right to refugee children. It provides that refugees as well as refugee children are ‘entitled to the same … basic primary education which the inhabitants of the Republic receive from time to time’. In light of the Khosa decision, ‘everyone’ will arguably also include permanent residents. However, two prominent academic commentators on the right to education have argued that ‘everyone’ in section 29(1)(a) should be extended to every child in this country, irrespective of status. Woolman and Bishop write that ‘everyone’ means exactly that, namely that the guarantees contained in section 29(1)(a) ‘are not limited [to] citizens or even permanent residents’.144 It is important to reiterate, they argue, ‘that there will seldom, if ever, be a reason to refuse a child access to education, even if she is only in the country temporarily’. This means that children in an irregular situation should also benefit from a right to basic education in South Africa. However, this view is directly contradicted by the provisions of the Immigration Act, which provides in section 39 (1) that ‘(n)o learning institution shall knowingly provide training or instruction to an illegal foreigner’ or ‘a foreigner whose status does not authorise him or her to receive such training or instruction by such person’ [original emphasis]. In addition, section 42 (1) provides that ‘… no person, shall aid, abet, assist, enable or in any manner help an illegal foreigner … [by] providing instruction or training to him or her, or allowing him or her to receive instruction or training’ [original emphasis]. It is submitted that in light of the arguments presented above, and in light of South Africa’s international obligations under the Convention on the Rights of the Child, these provisions are extremely vulnerable to Constitutional challenge.

The question that still needs to be answered is what exactly ‘basic education’ entails. The meaning of ‘basic education’ has yet to be determined by South African courts. However, the consensus among academic commentators is that it must include both essential learning tools such as literacy, oral expression, numeracy, problem-solving skills and basic learning content such as knowledge, skills, values and attitudes.145 This means that what constitutes basic education in the South African context cannot be arbitrarily defined in terms of age or the completion of a particular level of schooling but should be determined in accordance with the educational interest to be achieved by the guarantee of the right. The meaning ‘should therefore be wider than that of only primary education, or compulsory education in terms of the South African Schools Act … and should include secondary education, without which an individual’s access to the full enjoyment of other rights … would be severely limited.’146 Such a purposive understanding of the term is also in line with position adopted by the Council of Europe, which extends the right to both primary and secondary education to children in an irregular situation.

However, as is the case in respect of the provision of health care, the de facto situation in respect of the provision of basic education to non-citizens in South Africa differ markedly from the norms established by international law as well as the relevant Constitutional provision. Various reports indicate that school principals are increasingly requiring birth certificates before registering children for school, which essentially deny children born to irregular migrants their right to a basic education. Those who have managed to attend school without a birth certificate are then excluded from writing the senior certificate (matric) exam, for which a birth certificate is a requirement.147 Another barrier relates to the de facto requirement that migrants pay school fees, which contradicts the South African Schools Act’s prohibition on refusing admission to schools based on the parents’ inability to pay.148

142 Section 19 of the South African Schools Act explicitly states that the Act applies equally to learners who are not citizens of South Africa or whose parents hold temporary or permanent residence permits. 143 130 of 1998. 144 See Stu Woolman & Michael Bishop ‘Education’ in S Woolman (ed) Constitutional Law of South Africa (2007)

57-22. 145 See Faranaaz Veriava and Fons Coomans ‘The Right to Education’ above n130, 63. 146 Ibid. In terms of section 3(1) of the Schools Act, it is compulsory for a learner to attend school from the age of

seven until the age of fifteen or of the ninth grade, whichever comes first. Also see Stu Woolman & Michael Bishop ‘Education’ in S Woolman (ed) Constitutional Law of South Africa (2007) 57-18.

147 See Tara Polzer ‘Identity Documents and Service Provision in Border Areas – Facilitating Local Development’ Discussion Brief: National Department of Home Affairs (University of Witwatersrand, Forced Migration Studies Programme, (June 2007) 15.

148 Section 5(3)(a) provides that ‘no child may be prevented from going to school because their fees cannot be paid’. See Loren B. Landau ‘Decentralization, Migration, and Development in South Africa’s Primary Cities’ in Aurelia


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It was mentioned earlier that the right to a basic education contained in section 29(1)(a) of the Constitution is not conditional upon the availability of resources (as is the case in respect of other socio-economic rights such as access to health and social security discussed above). However, this does not preclude the State from raising resource constraints under section 36 of the Constitution in order to justify a limitation of the right to a basic education.149 This means that the often-heard argument that the existing educational infrastructure cannot incorporate the ‘flood’150 of foreign children should they be granted access to schools may very well make its appearance in Court as part of the State’s justification-argument. If so, it needs to be pointed out that a study compiled by the Migrant Rights Monitoring Project indicates that the numbers of foreign children in the school system represent a trickle rather than a flood. According to the study, ‘[o]nly 15% of surveyed non-citizens had school-age children with them in South Africa. The percentage among undocumented migrants was even lower (6%)’.151 Thus, since migrants are not evenly distributed around the country, but tend to be concentrated in certain urban areas and in the border regions, ‘it is important to recognise and address the challenges for schools in those areas, but not to assume that the entire school system is overwhelmed.’152

VI. THE IMMIGRATION ACT AND CROSS-BORDER TRADERS. National and regional economic policy initiatives, particularly the SADC Free Trade Protocol, indicate that South Africa (along with other countries in the region) view regional trade as part of the solution to the region’s economic problems and a tool to promote regional integration and development as well as to alleviate poverty. Yet, as Peberdy points out, current trade policies have paid little attention to the activities of small entrepreneurs (who are primarily women) who are involved in what is called informal cross-border trade and who are also part of the movement of goods and capital through the region.153 These traders primarily consist of two categories: In the first place, the most numerous traders are those:

who travel to South Africa for short periods (1-4 days) to buy goods (usually from formal sector retail and wholesale outlets and farms) to take back to their home country to sell. These goods are sold in markets, on the street, and to formal sector retail outlets and to individuals.

In the second place, they include:

traders who travel to South Africa for longer periods (1week to 2 months) who carry goods to sell in informal and retail markets. The profits are then invested in buying goods which are then taken back to their home countries for sale in informal and formal sector markets.154

Studies indicate that cross border traders represent a significant part of regional migrants to South Africa.155

Wa Kabwe-Segatti and Loren Landau (eds) Migration in Post-Apartheid South Africa: Challenges and Questions to Policy-Makers (Agence Française de Développement, 2008) 163, 189.

149 Stu Woolman & Michael Bishop ‘Education’ in S Woolman (ed) Constitutional Law of South Africa (2007) 57-14. 150 See Jonathan Crush, Vincent Williams and Sally Peberdy, Migration in Southern Africa: A paper prepared for the

Policy Analysis and Research Programme of the Global Commission on International Migration (Global Commission on International Migration, 2005) 12.

151 The study is referred to in CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa above n68, 45.

152 Ibid. 46 153 See Sally Peberdy, Hurdles to Trade? South Africa's immigration Policy and Informal Sector Cross-border

Traders in the SADC (paper presented at SAMP[Southern African Migration Project]/LHR[Lawyers for Human Rights]/HSRC[Human Sciences Research Council] workshop on Regional Integration, Poverty and South Africa’s Proposed Migration Policy, Pretoria, 23 April 2002) 35.

154 Ibid36. 155 ‘According to a recent study by the Southern African Migration Project conducted at major border posts with all

South African neighbours except Namibia and Botswana, “of the 6 millions border crossings in a year, 30-50% are by small–scale traders”’, (reported in ‘Immigration: What it’s Doing to South Africa’, Financial Mail (Johannesburg), 16 February 2007, 36.


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However, to many cross-border traders, the eligibility barriers to enter South Africa seem insurmountable, and have encouraged irregular entry into South Africa.156 While the Immigration Act introduced cross-border permits which allow multiple entries for ‘a foreigner who is a citizen of a prescribed foreign country with which the Republic shares a border …’ [original emphasis]157 these permits do not authorise the holders of such permits to trade.158 ‘Besides, while the 2002 Immigration Act established that these permits could be granted even to people who did not hold a passport but were registered with the DHA [Department of Home Affairs], this possibility has been removed by the 2004 amendment of the Act’.159 Technically, these cross-border permits do not allow cross-border traders to participate in street trade in South Africa, which leaves them vulnerable to arrest by police and Home Affairs officials. More often it seems it leaves them vulnerable to corrupt officials who elicit bribes rather than arrest them.160 This inappropriate permit regime relating to informal cross-border trade necessitates an urgent response from the authorities in South Africa. At the moment, ‘no country in the region has a specific visa which allows cross-border traders to cross legally but with access to markets’. However, as Peberby points out,

certain countries have instituted formal and informal bi-lateral agreements which allow traders to move more freely across certain borders at certain times (and even on certain days). However, these are not uniformly applied and often only affect local cross-border traders and specific border posts.161

It is submitted that – at a minimum – the introduction of a specific permit that would make allowance for this important form of migration should be investigated in order to remove the conditions that currently engender corruption and encourage irregular migration.

VII. DETENTION AND DEPORTATION OF FOREIGN UNACCOMPANIED CHILDREN FROM SOUTH AFRICA

The political and economic instability in countries in the Southern African region – in particular in Zimbabwe – has led to a significant increase in the number of unaccompanied foreign children entering South Africa.162 A recent study conducted by the Forced Migration Studies Programme in border towns such as Musina and Komatipoort and urban centres like Johannesburg ‘indicates that children as young as seven years old are migrating alone, primarily from neighbouring countries such as Zimbabwe, Mozambique and Lesotho’.163 These children are often exploited, suffering at both the hands of smugglers (whom they have to bribe to cross the border) and, once in South Africa, at the hands of South African police, who often treat unaccompanied foreign children like adults by detaining them alongside adult irregular migrants at repatriation centres; or who simply drop them off ‘at the borders of Mozambique, Zimbabwe and other countries without [any] attempts to reunite these children with their families or to reintegrate them into society’.164

However, in 2004, The Pretoria High Court (as it was then known) held that the legal protections applicable to South African children, contained in both the Constitution and the Child Care Act of 1983, apply equally to unaccompanied foreign children present within South Africa’s borders. In the so-called Lindela case,165 the High Court held that unaccompanied foreign

156 Olivier Social Protection for Non-Citizens 100. 157 Section 24. 158 International Federation for Human Rights Surplus People? above n40, 19. 159 Ibid. This impacts negatively on many citizens of neighbouring countries (in particular Zimbabweans) who are not

in possession of passports and who are unable to obtain one expeditiously from their various home-administrations. 160 Sally Peberdy, Hurdles to trade? South Africa's immigration policy and informal sector cross-border traders in the

SADC above n153, 43. 161 Ibid, 45-46. 162 CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa above n68, 62. Research

conducted by the International Federation of Human Rights revealed that 900 unaccompanied children entered South Africa at Beitbridge border post (between South Africa and Zimbabwe) in 2006 and that 400 did so during the first two months of 2007. See International Federation for Human Rights Surplus People above n40, 12.

163 Ibid. 164 CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa above n68, 21, 62; International

Federation for Human Rights Surplus People? above n40, 24. 165 Centre for Child Law & Another (Lawyers for Human Rights) v Minister of Home Affairs & Others above n76.


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children should be treated as children in need of care in terms of the formal child protection system as opposed to being processed through the immigration system. Thus, whenever a foreign child is found in need of care, such child must be placed in a place of safety, his or her personal circumstances investigated by a social worker and a Children’s Court inquiry opened, conducted and finalized. This is the same procedure that applies to South African children. As Olivier points out, this particular and, until now, unusual remedy in the South African constitutional context clearly illustrates the need for an intersectoral and integrated national policy framework on the treatment of unaccompanied foreign children in South Africa.166 Unfortunately, there still appears to be no proper government policy or procedure providing for the lawful and dignified deportation of children from South Africa.167 In this regard, the South African government would do well to heed the words of a select committee of the British House of Lords:

Governments need to manage migration in a way that controls illegal immigration effectively. But in doing so they must not forget that they are dealing with people, most of whom are motivated simply by a better life for themselves and their families, and in devising measures to control illegal immigration they must ensure that they scrupulously observe their human rights obligations.168

VIII. CONCLUDING REMARKS Around the world, irregular migrants are often excluded from basic social rights. Exclusionary laws and policies often rest upon and convey the idea that irregular migrants themselves are primarily responsible for their precarious situation.169 However, such policies tend to overlook national and international macro-economic factors that give rise to irregular migration such as demand for cheap and flexible workforce within ‘black markets’ of host countries combined with the extreme poverty in the countries of origin.170 These factors certainly characterise irregular migration in the SADC region. Evidence suggests that there is a synergy in the region between dire economic circumstances in the migrant-sending countries and high demand for the cheap and easily disposed of labour that undocumented migrants can offer in certain sectors of the economy of the migrant receiving countries.171

Few would go so far as to argue that irregular migrants should enjoy the full range of socio-economic rights extended to regular migrants, or that there should be no distinctions drawn between these two groups. Host states have a sovereign right to devise their immigration policies and control immigration within their borders, and to differentiate between those who entered the host state in an irregular fashion or whose sojourn in the host state is tainted with irregularity, and those whose status is regular. However, as indicated earlier, developments at the international and the regional level, as well as legal and policy developments in a number of individual countries around the world, indicate that we may begin to see a movement away from an approach that focuses exclusively on the security aspects of irregular migration (i.e. on measures to combat irregular migration) to a more nuanced approach that also places significant emphasis on the human rights of irregular migrants. Consensus is beginning to emerge that irregular migrants are entitled to certain minimum rights in the migrant receiving country. It is hoped that the specific recommendations made in this paper will go some way towards making those core rights a reality in South Africa.

166 Marius Olivier, ‘Regional Overview of Social Protection for Non-Citizens in the Southern African Development

Community (SADC)’ (Report commissioned by the World Bank, 2009) 68. 167 CoRMSA Protecting Refugees, Asylum Seekers and Immigrants in South Africa above n68, 21. 168 Select Committee on the European Union, A Common Policy on Illegal Migration, House of Lords Paper No 187,

Session 2001-02 (2002) 17. 169 See Sylvie Da Lomba ‘Fundamental Social Rights for Irregular Migrants: The Right to Health Care in France and

England’ above n105, 365. 170 Ibid. 171 Alice Bloch ‘Gaps in Protection: Undocumented Zimbabwean Migrants in South Africa’ Migration Studies

Working Paper Series No. 38, (University of the Witwatersrand Forced Migration Studies Programme July 2008) 8.