Abstract
The dissertation will explore how the right of foreign nationals to choose a trade, occupation or profession in section 22 of the South African Constitution has been interpreted by courts in line with international and regional treaties.
Although South Africa’s Constitution does not have an express right to work, the right to work is associated with human dignity, which extends to foreign nationals. However, section 22 of the Constitution refers to “every citizen has the right to choose a trade, occupation, and profession. The profession may be regulated by law”. It is clear from this that foreign nationals are not explicitly included in the right in section 22. That raises whether foreign nationals have the right to work in a desired trade.
The question as to “whether foreign nationals have the right to work?” is looked at on an international and domestic level. The dissertation considers international law which South Africa has ratified, examining treaties that are binding on South African courts in terms of section 39 of the Constitution, which sets out that international law must be considered by courts. The dissertation also looks at how South African law regulates the right to work for foreign nationals by examining relevant case law on section 22 as well as section 9 (which prohibits unfair discrimination).There are instances where the right to work is limited in regulated industries as in the Constitutional Court’s Union of Refugee Women judgment and the recent Constitutional Court decision, Rafoneke (which found that legislation restricting foreign nationals from enrolling and being admitted as legal practitioners is constitutional). Both cases were decided based on a restrictive approach that limits the rights of foreign nationals, including their right to equality. Finally, this dissertation makes some recommendations for the way forward.
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Keywords
Foreign nationals; citizens; unfair discrimination; employment opportunities; right to choose trade, occupation, or profession; limitation of the right to work; human dignity.