18 July 2017
On 4 July, the Equality Court in Vereeniging ordered the Department of Labour to create a system that would allow asylum seekers to be paid their Unemployment Insurance Fund (UIF) benefits.
The applicant in the case was Hafiz Saddiq, a refugee who sought asylum in 2011. He found a job in South Africa, but his employment was terminated in November 2016. For the last few years in which he was employed, UIF was deducted from his salary. But when he tried to claim UIF, the Department of Labour said it could not pay.
The department said its system required claimants to provide a valid identity document or passport number in order to claim benefits. Since Saddiq was an asylum seeker, he had neither of these documents or numbers. He was informed that there was no system to pay him.
The Promotion of Equality and Prevention of Unfair Discrimination Act prohibits discrimination on a number of grounds. Discrimination on the basis of a person’s citizenship is not listed in the Act nor the Constitution. However, the Act prohibits discrimination on a ground that perpetuates a system of disadvantage or undermines human dignity. Saddiq argued that the department’s payment system amounted to unfair discrimination and infringed on his dignity.
The court agreed. It found the department’s system unfair and discriminatory, and that it created a systematic disadvantage for Saddiq based on his citizenship.
The court ordered the department not only to pay Saddiq his UIF benefits, but it also made an award of R30,000 damages as compensation for the department’s conduct. The department was further ordered to apologise to Saddiq and pay the costs of the application.
Most importantly, the court ordered the department to correct its computer systems to allow any asylum seeker who has contributed UIF to receive the benefit.
The court did not decide on the constitutionality of the department’s conduct, systems or policies since it did not have jurisdiction to do so.