Court victory enables asylum seekers in SA to claim unemployment benefits

Source: Biznews, 02/03/2019

However, following a ruling of the High Court of South Africa,
Gauteng Division (Pretoria) on 27 February 2019, this will no
longer be the case as a result of litigation initiated by
Werksmans Attorneys’ pro bono department.
During the course of their employment, employees (including asylum
seekers) have a duty to make contributions to the UIF.
The employer makes the contributions on the employee’s behalf by
deducting the relevant portion of their salary. Upon termination
of the employment relationship, the contributing employee becomes
entitled to benefits from the Fund. To claim these benefits, the
employee is required to submit, amongst other things, an identity
document, in terms of the Unemployment Insurance Act Regulations.
However, asylum seekers (defined as people who have arrived in
South Africa and applied for refugee status as a result of being
forced to flee their countries of origin) do not have identity
documents.
For an asylum seeker to obtain an identity document, their
application for asylum must be successful, at which stage they are
formally declared to be a “refugee”, and become entitled to a
wider body of rights, including an entitlement to an identity
document. The regulations to the Refugees Act specify that the
asylum application should take no longer than 180 days. In
reality, however, many of these applications take longer than 10
years.
Because asylum seekers do not have identity documents they are
excluded from claiming benefits from the Fund, despite many having
made contributions to the Fund for years.
Such was the case for 5 asylum seekers represented by Werksmans in
an application against the Minister of Labour, the Director-
General of the Department of Labour and the Unemployment Insurance
Commissioner (the Respondents) to declare certain regulations of
the Unemployment Insurance Act unconstitutional to the extent that
they exclude asylum seekers from claiming benefits; and to direct
that the Department of Labour affect the necessary systemic
changes to allow asylum seekers to claim benefits.
The application was opposed by the Respondents and subsequently
set down to be heard on 27 February 2019.
Upon arriving at court on the day of the hearing, the Respondents
conceded on all material aspects of the application, as a result
of which the impugned regulations were declared unconstitutional
and an order was granted in favour of the asylum seekers, with
costs.
This judgment is an important endorsement of the principles of
social justice in that asylum seekers who have made contributions
to the Fund will now be able to claim their benefits if they are
in possession of a valid asylum seeker permit.