Will it be legal for businesses to prioritise South Africans during these troubled times?

For the most part, the Bill of Rights within our constitution and the rights contained therein apply to all people in South Africa regardless of nationality.

Philosophically, this makes sense as human rights are applied on the basis of one’s humanity rather than some Starship-Troopers-esque reward. Philosophy doesn’t always get it completely right though. Even highly regarded scholars such as Aristotle have made some poor calls in the form of justifying slavery.

To address the inefficiencies of the underlying philosophies broadly informing our constitutional framework, there are built-in mechanisms of pragmatism. For example, little Sam aged nine may be a citizen but won’t be allowed to vote until he doubles his age and Paula, a non-national, has no right to a passport. Broadly, there are four rights which apply exclusively to citizens: political choices (S19), not to be deprived of citizenship (S20), entering the republic (s21) and, would you believe it, freedom of trade, occupation and profession (s22).

The fallout of affording working rights to only citizens is nothing new. South Africa has a history of abuse of the asylum seeker process by economic migrants. Upon arrival, though, businesses are less inclined to hire them as, for the most part, their papers only guarantee six months in the republic and their value to a BEE scorecard is as close to nil as one can get. Were it just economic migrants gaming the asylum seeker process for 10 years making up the foreign population in South Africa then life would be pretty easy for Mboweni but there are many who actually need protection and many others who also are in South Africa via other channels, and that may prove a moral difficulty for the finance minister’s proposed direction.

However, from a legal perspective, South Africans have had it more favourably in terms of getting work since forever ago, and our legal framework was drafted to ensure that. It may not be a popular move and, in the short term, may even be damaging socially, but turning the taps off on economic migration as a means to address local unemployment seems like a potentially effective long-term strategy.

But what about equality? Surely that’s a right! Yup … and rights can be limited too. In these instances, those rights are limited. In fact, even the Immigration Act seriously limits one’s ability to employ foreign nationals without the requisite permissions.

However, law is smart and places the focus and responsibilities on employers, so in the case of a foreign national being employed illegally, that foreign national is still provided with workers’ rights and it will be the employer who is in trouble with the law. In 2008, this was the case when Discovery Health fought the CCMA on this very issue … with some nuances …in the Labour Court.

So what of foreigners who were already employed against the law? Could they simply dismiss their foreign staff? Probably not without going through a long-winded operational requirements process that will be subject to much disagreement, but the point is that it would appear that if the finance minister wants to promote and encourage the employment of South Africans over foreign nationals, he has the legal framework to stand on.

And those are just the improperly documented foreigners, but what about the legally compliant ones, the ones with permits and the like, in the formal economy. This may be the minister’s most difficult decision and I would not envy him should he begin considering a concession and then dealing with the informal economy screaming discrimination. It’s the big institutions in the formal economy that have the finances to litigate so there he will have to tread carefully and perhaps open the doors on a case-by-case basis simply to avoid contentious litigation. He’ll be hard pressed to justify allowing companies of 10 people to go down because a fraction of them are foreigners. It will be interesting to see how the mechanics of the support will be designed.

Of course it will be unpopular with many groups, but leaders must make unpopular decisions all the time and while I’m still unsure which side of this I will come down on morally, legally, I think it’s sound albeit dangerous grounds steeped in subtle differences in various laws.

Would he be able to extend, on the same logic, the argument and requirement to race instead of nationality? Would he be able to use this as a matter of correcting gender inequality? I’m not convinced either of those instances will pass the constitutional limitations test but I’m also not convinced that he has sufficient political capital to even try.

One thing is encouraging though. As unpopular as the decision may be, it is an indication of the minister’s desire to take decisive action to address the economy. How effective it may be remains to be seen.

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