President Cyril Ramaphosa addressed the country this month, reminiscent of those "family meetings" during Covid, and touched on why South Africa is not an anti-foreigner country – the less pleasant term is xenophobic – what government is (or isn't) doing to address the situation and what employers are doing wrong. We are therefore expected to be ashamed of ourselves and, apparently, face prosecution.
The president noted during his address: "As part of rebuilding the labour enforcement capacity, the Department of Employment and Labour has launched the phased recruitment of 10 000 inspectors for this financial year. We are going to increase the penalties, including imprisonment, for employers who violate the Immigration Act. To address violations of immigration and labour laws in the transport sector, we are implementing a plan that has been developed with the logistics and freight industry and labour organisations."
The Road Freight Association (RFA) reminds the president of the various urgent communications addressed to him in 2018 and 2022 regarding this very matter – specifically the employment of undocumented (illegal) foreigners in the road freight and logistics industry.
Suggestions were made, proposals on how to address the matter were provided, and offers of assistance were made. Very little came of that.
A Presidential Task Team, involving the then ministers of police, labour and transport, was convened. It included representatives of the departments, the All Truck Drivers Forum and Allied South Africa (ATDF-SA), unions and registered employer organisations.
The result was the drafting of a 14-point plan. Years later, very little progress has been made, resulting in the ATDF-SA leaving the Task Team following continuous complaints that government was not listening. We have seen increasing frustration among its followers in recent months.
The Task Team has focused on training drivers. That was never the intention of the Task Team – reskilling those who had lost their employment for reappointment, perhaps, but not the training of new drivers to fill jobs allegedly held by foreigners.
The real problem
The primary reasons for the widespread employment of foreign nationals in the road freight and logistics sector are threefold:
- The requirement for registration by all companies and entities moving freight on public roads is not enforced or monitored.
- Inspections are not undertaken across the sector. Instead, known, compliant and registered companies are inspected repeatedly.
- There is no requirement, when registering as a road freight transporter, to prove registration with the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) or to disclose who your drivers are.
The association has repeatedly advised the Department of Transport that without confronting these issues, the situation will continue to deteriorate.
There are further aspects of the National Road Traffic Act (NRTA), Act 93 of 1996, as amended, that are not being applied. The implementation of this legislation could have prevented the current situation in the sector.
But make no mistake, the employment of undocumented foreigners is just as prevalent, if not more so, in other sectors – most likely for the same reasons. Existing labour and sector-specific legislation is simply not being implemented.
The president also noted that thousands of new labour inspectors would be appointed and deployed. In reality, this will have little effect if the current inspection model remains unchanged: repeatedly inspecting registered companies that are largely compliant. The result could simply be more audits of already compliant operators.
It is also clear that the threat of prosecution has not acted as a deterrent. This is largely due to weak inspection processes, poor prosecution outcomes, weak cases and the ability of non-compliant operators to subvert the system.
The most immediate impact of stricter enforcement against undocumented foreign nationals entering the country could be felt at ports of entry – whether by land, air or sea. If applied rigorously, this could create backlogs, congestion and queues at passport control points.
Foreign drivers operating foreign-registered vehicles are generally not the problem, as they are employed outside South Africa. There would, however, need to be checks on whether freight vehicles are carrying passengers and, if so, their legal status.
Apply the rules
The real test lies within the country. That is what the RFA has told government repeatedly. There is sufficient enabling legislation. There are clear rules governing when and why foreign nationals may be offered employment in preference to South African citizens. Apply those rules. Consistently. Rigorously. Require all employers to comply.
This is not about removing all foreigners simply because they are foreign. It is about following the rules, applying them consistently, and ensuring the process is fair, transparent and lawful.
