August 23, 2011

IV. Occupational and Other Health and Safety Issues

Farmworkers suffer from a variety of health and safety abuses. Farmers often fail to provide the proper safety equipment or take other steps to mitigate farmworkers’ exposure to pesticides, sometimes explicitly denying farmworkers’ requests for safer conditions. The majority of farmers do not provide toilets or drinking water near the fields, particularly on farms that do not export. Agricultural work is dangerous, and injuries are not uncommon, yet it can be difficult for farmworkers to access health care. High levels of alcohol abuse are rampant, leading to a number of health and safety problems. Moreover, farmers routinely refuse to provide legally-required sick leave to workers without first receiving a medical certificate, contrary to Sectoral Determination 13. The state thus far has failed to protect the health and safety of farmworkers.

4.1. Pesticide Exposure

The tractor sprays pesticides when people are in the field. So the spray touches you and your skin. If your skin is exposed, then [you] get a rash. The wind will carry pesticides to people.… The tractor driver gets mask, but not people in the field.… It’s not fair to spray … when [the] wind [is] blowing [on] all other peoples.
Duduza C., De Doorns, November 28, 2010.

Throughout the Western Cape, farmworkers and farm dwellers are exposed to pesticides, which can have severe health impacts. Exposure to pesticides may be the cause of a range of different health problems, from rashes and non-specific symptoms such as burning eyes, dizziness, nausea, vomiting and headaches, to acute intoxications, particularly with organophosphate pesticides, which may result in fatal poisonings. Aside from acute poisonings that can occur, persistent pesticide exposure can increase the risk of developmental problems in children born to exposed mothers or in children exposed as they grow up; reproductive disorders in both men and women; disruption of the immune and endocrine systems; nervous system toxicity manifesting in damage to nerves, brain injury, or impaired function; and increased risk for certain cancers.[171]It can also cause chronic illness involving the lungs or skin.[172] Moreover, pesticide exposure can “aggravate and be aggravated by high rates of psychological illness, under-nutrition, infectious diseases and alcohol- and tobacco-related diseases.”[173] Many farmworkers said that they knew that pesticides can cause health problems, and most simply referred to pesticides as “poison.”

Farmworkers said that they had contact with pesticides in multiple ways: when working to apply them, working in the same field while pesticides were sprayed, working in nearby fields and being exposed to pesticide drift, or through residue on crops. Farmworkers and farm dwellers are also exposed to pesticides at home, through contact with residue on workers and their clothing.

Although all farmworkers on non-organic farms are exposed to pesticides to some extent, their exposure can vary depending on their job, the farm’s health and safety practices, the amount applied, and the use of protective equipment and clothing, as well as washing and other factors. Farmworkers’ problems related to pesticides can be increased by the difficulty that some of them face in accessing health care, and the requirements of some farmers that they continue to work even after health problems arise.

Pesticides can enter the body through the skin, mouth, lungs, or eyes. [174] Certain procedures can minimize farmworkers’ exposure to such toxins, including the use of proper safety equipment and guidelines regarding when farmworkers can re-enter sprayed fields, but they are not practiced on all farms. Conversely, improper equipment may actually increase exposure: for example, improper dust masks provided in lieu of respirators do not protect from pesticides and could potentially exacerbate pesticide exposure. [175]

Multiple former farmworkers described developing asthma or chest pains, which is consistent with pesticide exposure. Many of them were told by doctors that they were sick due to pesticides. Although farmworkers sometimes stop working in the fields after this diagnosis,[176] other workers continue to work after developing asthma. For example, Greta P. explained that when she stopped working as a farmworker, she had a “problem inside my chest”; her uncle continues to spray pesticides on the same farm even though he has asthma.[177]

Although a number of laws and regulations govern aspects of the use of pesticides in South Africa,[178] the government has acknowledged that the legislative framework regarding pesticides must be improved.[179] In respect of farmworkers, the government has failed to protect them adequately or enforce applicable laws sufficiently. Labor inspectors, who are supposed to ensure that farmers comply with regulations regarding pesticide exposure, do not have the capacity to enforce compliance on all farms in the Western Cape. And, although the Occupational Health and Safety Act and relevant regulations governing pesticides include penalties for non-compliance, they are rarely imposed.[180]

Failure to Provide Proper Safety Equipment to Workers Working Directly With Pesticides

I work with spraying.… We only get gloves to work with poison. The guys with tractors get a mask. We complained but the farmer didn’t give [us a] mask. When you breathe, you can taste it. Now sometimes we have a mask, but it only covers the nose and mouth.
Kiersten H., Grabouw, November 27, 2010.

Although South Africa’s Occupational Health and Safety Act requires that employers provide workers with training, medical monitoring in certain cases, and “suitable respiratory protective equipment and protective clothing,”[181] some farmers fail to do so for farmworkers working directly with pesticides.

On some farms, farmers refused to provide proper safety equipment to farmworkers who work directly with pesticides. Dino M., who works as a spray operator year-round, told Human Rights Watch that the farmer gave him only overalls and rubber gloves. After pleading for a mask to wear, he was given a dust mask, which is not designed to protect from chemicals. As a result, he and other workers put their caps on their face to cover and block the spray. Because the farmer refused to provide boots, Dino must wear his own shoes, which get wet from the spray. As he cannot wash his hands at work, he must clean off the pesticides inside his house, exposing his three children to the chemicals, in violation of regulations that require employers to provide employees with adequate washing facilities where reasonably practicable.[182]

Anton B., a tractor-driver working with pesticides, said he was not given a mask or gloves to work with pesticides. In addition, he was given only one set of clothes, which he has had to wear every year for the three years that he has worked on the farm. He has asked the farmer many times for new clothes and a mask, but the farmer refuses to provide them. He also has never been given pesticide training on this farm, contrary to law: “If you say you want training, [the farmer] sends [you] home without money. He did that with one person who works on the farm.”[183] On a different farm, two workers who both work with pesticides said the farmer had never provided any safety equipment, not even a mask or gloves. They asked the farmer for equipment, but were told that there was no money to purchase it. One of the workers wears his own sunglasses to protect his eyes.[184]

Greta P., a former farmworker who worked on a farm for six years until she stopped two years ago, had to fight with the farmer to receive proper safety equipment for pesticides. The farmer eventually provided uniforms, but refused to give safety glasses or proper masks. Greta noted that the farmer also denied health care to female farmworkers working with pesticides:

[T]hey must test if there are pesticides in your blood. If there are, then they can’t make you work with pesticides. Only the white supervisor and the men went to the doctor to be tested, but never the women. Before I left, white supervisor was diagnosed to have pesticides in blood so he did other jobs. Women asked to be taken to the doctor, but the farmer said that only the men had to go. But the women spent as much time with the pesticides as the men.[185]

Such discrimination could have serious health consequences for women and their children, as some pesticides pose reproductive health risks, and some can be transferred through breastfeeding or in utero.

Failure to Mitigate Pesticide Exposure for People Not Working Directly With Pesticides

People put their jackets over their heads while [I am] spraying.
Dino M., Grabouw, November 27, 2010.

When safety precautions are not followed on farms, farmers also endanger workers who do not work directly with pesticides. Kleintjie S. explained that she sometimes has to follow workers who are spraying pesticides, in order to pick up damaged fruit. The farmer does not give her a mask like he does for the sprayers, and “[w]hen you go into the orchard, the chemicals [are] very strong.”[186] Similarly, Roedolf V., who has worked on a farm for 20 years, said that, until the previous year, workers had to follow tractors spraying pesticides, although they were given masks and gloves. Workers challenged this with the help of a union, and the practice was changed last year; now when pesticides are sprayed, workers can leave the field until the leaves are dry.[187]  

Nolita Z., who works on a farm certified by a fair-trade organization to meet certain standards, told Human Rights Watch:

The farmer says poison doesn’t have any effect on people, it’s just to make plants grow. People spraying will be very close; when the wind blows, it gets on [us]. When you say [you] have a rash, then farmer said it’s not the poison. I had a big rash on my face.[188]

On another farm, farmworkers who must remain in the orchards when pesticides are sprayed said that they eat lunch next to where pesticides are stored. Although they sometimes get itchy skin and rashes, the farmer does not take their complaints seriously.[189]

Even when they are not working in the fields, farm dwellers, including pregnant women and children, can be exposed to pesticides. For example, Katrina M., who lives on the farm and worked in the fields until she became pregnant, explained that the orchard is next to the workers’ houses, so when pesticides are sprayed, the wind carries the spray into the houses. Moreover, the spray tractors are parked directly in front of the workers’ houses, where they drip spray into the ground.[190] Phakhama J. said that after developing asthma and becoming increasingly sick, a doctor said she must not work near pesticides. She went to work in the crèche (day care center) with the children, but it did not help because the crèche was very near the vineyards where they sprayed.[191]

South African law does not specifically prohibit spraying pesticides while other workers are in the field or nearby, but regulations promulgated under the Occupational Health and Safety Act require that employers either prevent exposure to hazardous chemicals or make sure that exposure is adequately controlled, including by limiting the number of employees who are exposed and the period of time during which they are exposed.[192] As noted above, the lack of labor inspector capacity means that the government fails to enforce regulatory protections for workers, thereby allowing adverse health impacts to arise when farmers do not take steps to control pesticide exposure.

4.2. Sanitation and Access to Drinking Water While Working

The majority of farmworkers that Human Rights Watch interviewed about these conditions said that farmers did not provide them with toilets, hand washing facilities, or drinking water while working, contrary to law. Toilets and hand washing facilities are important for the basic hygiene of farmworkers, and can prevent gastrointestinal infections, skin and pesticide-related illness, respiratory infections, and urinary tract infections. Access to drinking water is necessary to avoid heat-related illness.[193] By law, employers are required to provide these basic necessities. Yet, again, the government has failed to enforce the law on farms throughout the Western Cape.

Toilets and Hand Washing Facilities

If you have a need, you dig a hole.
Nolita Z., describing how the provided toilets are too far away to use, Grabouw, December 4, 2010.

Farmers often do not provide toilets near fields, forcing farmworkers to relieve themselves in or near the vineyard or orchard where they work. Many of the same farms also do not provide hand washing facilities, so farmworkers are unable to wash their hands after relieving themselves. As one example, Wimpie H. said that because there were no toilets near the field, he must go to the bush if he needs to relieve himself, and because there is no place to wash his hands, he uses the water irrigation system in the field to do so.[194]

Anodiwa C., a seasonal farmworker on an export farm, explained,

When working in the field, there is no toilet near [the] field. So dig a hole and help yourself. There is also no place to wash your hands, so [you] eat without washing hands. The only water comes from a pipe, but it has chemicals inside it so we can’t wash with it.[195]

Other farmers provide toilets only during some parts of the year, or in inconvenient locations. Farida C. told Human Rights Watch that there were toilets near the field when the farm was harvesting for export; there were no accessible toilets when harvesting for domestic production, and no place to wash hands.[196]

Failure to provide sanitary facilities contravenes the Facilities Regulations, 1990, which requires that employers provide sanitary facilities.[197] Similarly, when employees work with hazardous chemicals, employers must provide employees with adequate washing facilities when reasonably practicable.

Drinking Water

Some farmers do not provide drinking water for workers, which can have detrimental impacts on workers’ health. Farmworkers thus must bring their own water.[198] Other employers do provide water for farmworkers, although it is not always suitable for drinking. For example, Nolita Z. explained that the farm provides two tubs of water in the morning, but because it sits in the sun, the workers cannot drink it after a while because it is boiling hot. If they do not bring their own water, then they have nothing to drink.[199]

4.3. Injuries While Working

The farmer told me “in order to be disabled, [you] have to be dead.”
Pieter N., former farmworker who stopped working due to work injuries, Ceres, December 3, 2010.

Around the world, agriculture is one of the most dangerous sectors in which to work, with machinery accidents, exposure to pesticides and agrochemicals, and musculoskeletal disorders among the most prevalent problems.[200] The agricultural sector in the Western Cape is no exception and farmworkers described a range of injuries. In some cases, the injuries were exacerbated by the farmworker’s poor access to health care or the farmer’s insistence that the worker keep toiling after being injured.

Injured farmworkers sometimes face pressure to continue working, and thus may be reluctant to stop working for fear of losing housing or other privileges on farms where they have long lived. Pieter N., a former farmworker facing eviction, used to work on the farm on which he was born, which produces both fruit and pine trees. He began as a general worker and then was promoted to chain operator, cutting pine trees on the farm. He injured his back in 2002 while cutting a tree that fell the wrong way, but continued to work for eight more years despite constant pain. In 2010 a doctor declared him unfit to work. Shortly afterward, however, the farm owner told him that because he continued to live on the farm he had to work in the garden. He began to do so, but was still in pain, and the doctor again said he should not work. According to Pieter, however, the owner pressured him to continue working, pointing to other people on the farm receiving disability grants who still worked. Pieter’s father, who worked on the same farm, had faced similar problems up until he died: after three serious injuries on the farm, he continued to have to work in order to live on the farm—even after losing a leg he was sent to work in a carpenter store on the farm.[201]

Workers are also sometimes unable to access medical care, whether due to obstacles from the farmer or the medical facility. For example, Anton B. said he was bitten by a farm owner’s dogs three times. Although he asked to go to the doctor the farmer refused to take him.[202] Arnold M., a former farmworker, told Human Rights Watch that he had injured his eye while cutting grapevines. The farmer drove him to a private doctor and dropped him off, but because he did not have a letter from the farm the doctor would not treat him. Arnold did not go to a public doctor so the farmer simply gave him eye drops.[203]

Even public hospitals can fail to treat farmworkers in a timely manner. For example, one farmer described how he has taken sick or injured farmworkers to the hospital three times without their being treated until he intervened: “I was very angry about the situation and said it is not right … I am a South African citizen, I pay tax, and [I] feel that people deserve better treatment than this.”[204] One person who conducts health projects for farmworkers noted that farmworkers get treated poorly whenever they go into town for health or other reasons, stating that “the moment you mention you come from a farm, you get treated very, very differently.”[205] Although farmworkers are legally entitled to workers’ compensation and disability benefits for injuries occurring on the job, injured farmworkers and their families are often uncertain about the benefits to which they are entitled.[206]

4.4. Legacy of the Dop System

The dop or tot system, which was a widespread practice in the Western Cape through which farmers partially compensated workers for their labor with wine, has been illegal for decades.[207] Farmers continued to provide dop payments up until the 1990s, however, when the government made a more concerted effort to eradicate the system.[208]These payments have generally disappeared, although Human Rights Watch did document two farms that provide wine as partial compensation, as discussed in the box below.[209] Much more prevalent in the Western Cape are problems that flow from the legacy of the dop system. Combined with other factors, it has had devastating effects on the farmworker population in the province, leading to rampant alcohol abuse on farms and one of the highest levels of fetal alcohol syndrome in the world.[210]

Widespread alcohol abuse on farms has led to frequent violence among farm dwellers.[211] Elize A., a young adult who grew up on a farm, said “it’s common for people to be drunk and fighting.”[212] Domestic violence is also a big problem on some farms, affecting both women and children.[213] One teacher from a rural school described a student whose stepfather works on a farm and receives wine from the farmer “seven days of the week. And then when his stepfather gets drunk, he turns violent on him.”[214]

Although the legacy of the dop system has had a severe impact on farmworkers’ well-being and that of their families, the government, farmers, and the wine industry have failed to address comprehensively both the dop system’s lasting consequences and the impact of its ban.[215] No consensus exists on how to address these problems, or who is responsible for doing so. Yet the South African Constitution obligates the government to take reasonable measures to ensure that everyone has the right to have access to health care services,[216] and, as a state party to the African Women’s Charter, the government must take all appropriate measures to “provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.”[217]Some government departments, as well as the wine and alcohol industries, have undertaken efforts to address alcohol abuse on farms and fetal alcohol syndrome.[218] While important, the government and other actors have not undertaken steps that are sufficiently comprehensive, such as ensuring that farmworkers throughout the province have access to information on alcohol abuse and fetal alcohol syndrome, as well as access to rehabilitation programs that are affordable for farmworkers.

Box 2: Remnants of the Dop System

Piet A., a farmworker who recently started working at a new farm after working for over two decades on a different one, told Human Rights Watch that on the old farm his pay slip said he received 1600 rand per month, but that each month he instead received 400 rand (approximately US$59), along with a package of food the farmer said was worth 800 rand, and daily wine:

During the week, I am given wine in the afternoon at 12 p.m. and at 6 p.m. in the evening. I also get this on Saturdays. On Sundays, we get wine in the morning, afternoon, and evening. In the morning, we get it before 7 a.m., at 12:00 p.m., and we have to do Sunday prayer and then get more wine at 6:30 p.m.… If you don’t want the wine, then it’s your choice. Everybody is drinking except the children and the guy driving the school bus.…
When I started working at age 12, the dop system was legal so I started getting dop when I was 12. Children working now on the farm don’t get dop because it is not legal.… I don’t like to get the wine because [I’m] scared to get injured on duty, but since it is free I take it.[219]

On another farm in the area, Anton B. stated that:

[The farmer] doesn’t pay overtime. They give people wine for overtime. But not me, because I don’t drink.… I start at 7 a.m., and sometimes work until 9 or 10 p.m. Without pay. [The farmer] only says he will give me a drink. If he does give me money, it is only six rand.[220]

4.5. Failure to Provide Sick Leave or Maternity Leave

If I am sick or injured on the job, they don’t pay me.
Anton B., Citrusdal, March 5, 2011.
 In 99% of cases [of farms audited], farmers require that workers furnish a doctor certificate (and sometimes a clinic certificate) before sick leave is granted, even if they were sick for only one day.… The health of farm workers are compromised as a result of the physical nature of the work; the legacy of the dop-system; high incidence of TB and HIV/AIDS. To then expect workers to pay a doctor’s fee every time they are sick is mercenary.[221]
Third-party auditor who has conducted audits on numerous farms in the Western Cape, email exchange, April 4, 2011.

Human Rights Watch research revealed that farmers almost uniformly fail to provide farmworkers with legally required sick leave, and in some cases do not provide maternity leave, denials that also constitute a violation of the workers’ right to health. Under Sectoral Determination 13, farmers must provide their workers with a certain amount of paid sick leave; if workers are ill for only one or two days, they do not have to obtain a medical certificate in order to receive it. Beyond that an employer may require a worker to furnish a medical certificate before providing paid sick leave for more than two consecutive days or on more than two occasions during an eight-week period.[222] Sectoral Determination 13 also states that a farmworker is entitled to a minimum of four consecutive months of maternity leave.[223]

Over one-third of farmworkers interviewed about benefits said they were not given sick leave, even when they provided a medical certificate. This includes almost all of the foreign workers interviewed by Human Rights Watch. As Anodiwa C., a Zimbabwean, said, “There is no sick leave. If you are sick, you stay at home. But if I am absent, then there is no money.”[224] A worker from Lesotho explained, “If I’m sick, I must go to doctor, but [I] don’t get paid.”[225] Other farmworkers were given fewer days of sick leave than the days to which they knew they were entitled. Kiersten H. explained that “sick leave is one of the big problems. I have a friend who was sick and got two days from the doctor [in a letter] but the farmer only paid for one day and threatened to withhold her bonus.… [But we are] supposed to get 10 days of sick leave.”[226] Arnold M., a former farmworker who has tuberculosis, said that he was not given sick leave, although some of the other farmworkers did. He went to the clinic regarding his tuberculosis and got a letter from the doctor, but when he gave it to the farmer, the farmer simply threw it away without explaining why.[227]

When farmers do pay sick leave, Human Rights Watch found that almost all of them require workers to provide a medical certificate to collect paid leave even for one or two days off, contrary to the law. Two third-party auditors stated that they found the same problem on farms in the Western Cape.[228] In many cases procuring such a certificate in order to receive sick leave is not worth the effort for workers. Obtaining a letter from doctors attesting to illness can be prohibitively expensive for farmworkers,[229] as the fee for one visit to the doctor is often between 150 and 300 rand, the equivalent of an entire week’s salary.[230] While farmworkers can sometimes go to free clinics, they still may have to pay for transport to the clinic, which can be expensive, and then must wait for hours or longer to receive treatment.[231]

Pregnant women face additional discrimination: farmers sometimes deny them work or dismiss them when they are pregnant, thus avoiding the provision of maternity leave required by law.[232] Betty S. explained, “[I]f you are pregnant for three months, they send you away because [they are] afraid something could happen.” On her farm, however, the farmer does not pay pregnant workers when they are sent away.[233] Pregnant seasonal farmworkers are in the most precarious position: once they are denied work, they cannot expect to return later to their seasonal jobs, and they will likely have to hide their pregnancy in order to find a new job: “If you are pregnant, then you can’t work. If you come to work when you’re pregnant, then they will chase you off the farm. We know people who have been pregnant who are not allowed to work. [The farmers] only want healthy people.”[234] A labor broker who hires many foreign seasonal workers told Human Rights Watch that seasonal workers are never paid maternity leave:

Farmers also don’t want pregnant workers. If someone becomes pregnant while working, they just hide it.… Permanent workers [are] given [paid] days off,… seasonal workers [are] just fired if [the farmer] finds out that [they’re] pregnant; [It] happens a lot. [There are] four this season that I know about [between October and December]. Workers just go find another job on another farm so they end up working the entire season.[235]

Box 3: Challenges Faced by Foreign Migrant Workers in the Western Cape

Although there are many foreign migrant farmworkers in the Western Cape, they are often invisible. Trade unions rarely focus on foreign migrant workers,[236] and workers often have no support to address problems. This can exacerbate their vulnerability, particularly concerning lack of contracts; improper deductions and lack of benefits; and a greater likelihood of verbal or physical abuse. Farmers often do not provide contracts to casual or seasonal workers. Almost all of the foreign workers whom we interviewed had never had a contract. As one seasonal worker from Lesotho explained, “there is no contract, just come and work; when it’s finished, it’s finished.” She was not even given a pay slip.[237]

Farmers often do not provide seasonal farmworkers, particularly foreign workers, with paid annual leave, in contravention of Sectoral Determination 13, which requires that employers grant farmworkers annual leave on full pay.[238] After the agricultural season ends, some foreign seasonal workers have great difficulty receiving benefits to which they are legally entitled from the Unemployment Insurance Fund (UIF), even though they have had UIF contributions deducted from their wages. Fearing deportation, foreign migrant workers often fail to report or contest abuses.

[171] World Health Organization (WHO), Toxic hazards, 2011 http://www.who.int/heli/risks/toxics/chemicals/en/index.html(accessed August 12, 2011).

[172] Surplus People Project, Pesticide Health Risks for South African Emerging Farmers,” undated http://www.spp.org.za/booklets/pesticide_booklet.pdf(accessed August 12, 2011), p. 3.

[173] Leslie London, “Human rights and health: Opportunities to advance rural occupational health,” International Journal of Occupational and Environmental Health, vol. 17, no. 1 (2011).

[174] Surplus People Project, Pesticide Health Risks for South African Emerging Farmers,http://www.spp.org.za/booklets/pesticide_booklet.pdf, page 3.

[175] Surplus People Project, Pesticide Health Risks for South African Emerging Farmers, http://www.spp.org.za/booklets/pesticide_booklet.pdf, p. 5; also Human Rights Watch interview with Leslie London, University of Cape Town, Cape Town, November 22, 2010. He notes that surgical-type masks do not help at best and might actually make a worker’s exposure to pesticides worse.

[176] Human Rights Watch interview with former farmworker/current union organizer, Rawsonville, December 5, 2010; Human Rights Watch interview with former farmworker, De Doorns, March 8, 2011.

[177] Human Rights Watch interview with Greta P., Stellenbosch, December 10, 2010.

[178]OHSA Act, No. 85 of 1993, regulates workplace health and safety for workers in all sectors. The Regulations for Hazardous Chemical Substances, 1995, which were promulgated by the Department of Labour under the OHSA, apply to employers at workplaces where persons may be exposed to hazardous chemical substances. Under these regulations, employers must, among other things, ensure that employees are informed and trained, provided with medical surveillance in certain cases, and provided with “suitable respiratory protective equipment and protective clothing.”

[179] In December 2010 the Minister of Agriculture, Forestry and Fisheries published the Pesticide Management Policy for South Africa, which notes the need to improve the legislative framework regarding pesticides and lays out a number of concerns regarding the current system. Department of Agriculture, Forestry and Fisheries, Pesticide Management Policy for South Africa, December 2010; Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, No. 36 of 1947, Adoption of Pesticide Management Policy for South Africa, http://www.info.gov.za/view/DownloadFileAction?id=137862 (accessed August 12, 2011), p. 6.

[180] Human Rights Watch email correspondence with Leslie London, University of Cape Town, June 18, 2010.

[181] Department of Labour, Regulations for Hazardous Chemical Substances, 1995. The Hazardous Biological Agents Regulations, also promulgated by the Department of Labour, require similar training, medical attention, and protective equipment.

[182] Human Rights Watch interview with Dino M., Grabouw, November 27, 2010. Under the Hazardous Chemical Substances Regulations, 1995, employers must, “where reasonably practicable, provide employees … with adequate washing facilities” to control their exposure and avoid the spread of hazardous chemicals.

[183] Human Rights Watch interview with Anton B., Farmworker, Citrusdal, March 5, 2011.

[184] Human Rights Watch interview with farmworkers, Franschoek, December 8, 2010.

[185] Human Rights Watch interview with Greta P., Stellenbosch, December 10, 2010. In contrast, some farmworkers who work directly with pesticides explained safety precautions that are taken on their farms and could be replicated elsewhere.

[186] Human Rights Watch interview with Kleintjie S., Citrusdal, November 30, 2010.

[187] Human Rights Watch interview with Roedolf V., Stellenbosch, November 24, 2010.

[188] Human Rights Watch interview with a farmworker, Grabouw, December 4, 2010.

[189] Human Rights Watch interviews with farmworkers, Franschoek, December 8, 2010.

[190] Human Rights Watch interview with Katrina M., Grabouw, November 27, 2010.

[191] Human Rights Watch interview with Phakhama J., De Doorns, March 8, 2011.

[192]Department of Labour, Hazardous Chemical Substances Regulations, 1995, arts. 10(1), 10(2)(b).

[193]OSHA-NIOSH Heat Illness Info Sheet,” US Center for Disease Control and Prevention, 2011, http://www.cdc.gov/niosh/docs/2011-174/pdfs/2011-174.pdf (accessed August 12, 2011).

[194]Human Rights Watch interview with Wimpie H., Lutzville, November 30, 2010.

[195]Human Rights Watch interview with Anodiwa C. and other farmworkers, De Doorns, November 28, 2010.

[196]Human Rights Watch interview with Farida C., Vredendal, December 1, 2010.

[197]On premises where fewer than 11 persons are employed, employers may make written arrangements for employees to use sanitary facilities on adjoining premises within certain constraints. Facilities Regulations, 1990, art. 2(2), (7).

[198]See, Human Rights Watch interview with a farmworker, Vredendal, December 1, 2010; Human Rights Watch interview with Arnold M., Rawsonville, December 5, 2010.

[199]Human Rights Watch interview with Nolita Z., Grabouw, December 4, 2010.

[200]ILO & FAO Working Together, Food, Agriculture & Decent Work, “Safety and Health,” 2011, http://www.fao-ilo.org/more/fao-ilo-safety (accessed August 12, 2011).

[201]Human Rights Watch interview with Pieter N., Ceres, December 3, 2010.

[202]Human Rights Watch interview with Anton B., farmworker, Citrusdal, March 5, 2011.

[203]Human Rights Watch interview with Arnold M., Rawsonville, December 5, 2010. In South Africa, although public medical facilities cannot deny treatment, there is no legal obligation on private facilities to provide care if the patient cannot pay and does not have medical aid.

[204]Human Rights Watch interview with a farmer, De Doorns, February 28, 2011.

[205]Human Rights Watch interview with Goedgedacht Trust, March 17, 2011.

[206]The Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993, covers workers’ compensation and disability benefits for injuries occurring on the job. This covers both temporary injuries that last more than three days and injuries causing permanent disabilities. Arts. 22(2)-(4), 49(a). If the employer’s negligence caused the accident, the amount due to an employee who is temporarily or permanently disabled will be increased.

[207]The dop system is named after the Afrikaans word dop, which is a colloquial term for alcohol.

[208]Susan Levine, In the season of the grape: changing patterns of children’s work in the Western Cape, South Africa, May 4, 2010; South African Wine Industry Council, “The Wine Industry Transformation Charter,” July 30, 2007, http://www.wine.co.za/attachments/PDF-View.aspx?PDFID=400, p. 5.

[209]For example, one labor inspector noted that the “practice has ceased to exist. In 15 years, we have not found one case where this still exists.” Human Rights Watch interview with a labor inspector, Cape Town, March 18, 2011. People working with an organization on alcohol abuse on farms noted that they have not seen the dop system, although they clarified that they were “not saying that it’s not happening.” Human Rights Watch interview with a civil society organization, Cape Town, November 29, 2010. Civil society actors who assert that dop payments continue to a limited extent note that, where it exists, it is difficult to document, as farmworkers are often reluctant to discuss and potentially lose the dop payments.

[210]According to the Foundation for Alcohol Related Research, “worldwide FAS is a big problem, although formal figures of the incidence are only available for America (0.1-3%), France (2.1%) and South Africa (8-12%). South Africa has the highest reported rate of FAS worldwide.” Foundation for Alcohol Related Research (FARR), Fetal Alcohol Syndrome: A Short Overview,” May 12, 2010, http://www.farr-sa.co.za/Fas_Info_Engl.htm (accessed August 12, 2011).

[211]See, Human Rights Watch interview with a farmworker, Citrusdal, November 30, 2010; Human Rights Watch interview with Dino M., Grabouw, November 27, 2010; and Human Rights Watch interview with farmworkers, Vredendal, December 1, 2010.

[212]Human Rights Watch interview with Elize A., Stellenbosch, December 7, 2010.

[213]Human Rights Watch interview with Lawyer at Women’s Legal Centre, Cape Town, November 22, 2010.

[214]Human Rights Watch interview with a school teacher, Citrusdal, March 1, 2011.

[215]It has been argued, for example, that banning the dop system without addressing alcohol abuse led to farmworkers spending a greater proportion of their salary on alcohol. This, in turn, coupled with the stricter enforcement of laws prohibiting child labor, consequently created greater levels of hunger among farmworkers’ children. Susan Levine, In the season of the grape: changing patterns of children’s work in the Western Cape, South Africa.”

[216]Constitution of the Republic of South Africa, art. 27.

[217]The Maputo Protocol, art. 14(2).

[218]For example, the alcohol industry has funded administrative work supporting research on fetal alcohol syndrome. Human Rights Watch interview with ARA, Stellenbosch, November 25, 2010; Human Rights Watch interview with FARR, Cape Town, November 29, 2010. The Department of Agriculture: Western Cape has dedicated 10 percent of the funds it has available for social upliftment programs for farmworkers to programs that focus on alcohol abuse. Human Rights Watch interview with a Department of Agriculture Western Cape official, March 17, 2011. The Department of Health and Department of Social Development also have funded relevant research or other programs. Human Rights Watch interview with FARR, Cape Town, November 29, 2010. In addition, the Department of Health has worked on alcohol abuse issues generally at the community level. See, Department of Health, Annual Performance Plan 2011/2012,http://www.doh.gov.za/docs/reports/annual/2011-12/part_a1.pdf (accessed August 12, 2011), p. 23.

[219]Human Rights Watch interview with Piet A., farmworker, Citrusdal, March 1, 2011. In a separate interview, a local teacher told Human Rights Watch that one of his former students had lived on the same farm and had described to him the dop that was given to the farmworkers, including his stepfather, who worked on the farm. Human Rights Watch interview with a teacher, Citrusdal, March 1, 2011. As noted above, it is now rare for farms to provide wine to workers as partial compensation for work.

[220]Human Rights Watch interview with Anton B., farmworker, Citrusdal, March 5, 2011.

[221]Human Rights Watch email correspondence with a third-party auditor, April 4, 2011.

[222]Sectoral Determination 13, No. 75 of 1997, http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-13-farm-worker-sector, art. 22. Art. 13(22)(6) states: “An employer is not required to pay the farm worker in terms of this clause if the farm worker has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the farm worker was unable to work for the duration’s absence on account of sickness or injury.”

[223]Sectoral Determination 13, No. 75 of 1997, http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-13-farm-worker-sector, art. 24(1).

[224]Human Rights Watch interview with Anodiwa C. and other farmworkers, De Doorns, November 28, 2010.

[225]Human Rights Watch interview with Lesotho farmworker, Ceres, March 12, 2011.

[226]Human Rights Watch interview with Kiersten H., Grabouw, November 27, 2010.

[227]Human Rights Watch interview with Arnold M., Rawsonville, December 5, 2010.

[228]Human Rights Watch interview with a third-party auditor, Cape Town, March 18, 2011; Human Rights Watch email correspondence with a third-party auditor, April 4, 2011.

[229]Sectoral Determination 13, No. 75 of 1997, http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-13-farm-worker-sector, Farm Worker wages 2011.

[230]Human Rights Watch email correspondence with a third-party auditor, April 4, 2011, which states that it can cost between 150-250 rand per visit. One farmer said that it costs farmworkers in his area 190 rand to go to the doctor. Human Rights Watch interview with a farmer, February 28, 2011. Some farmworkers said that it cost them 300 rand for a doctor’s visit. Human Rights Watch interview with farmworkers, Franschoek, December 8, 2010.

[231] Farmworkers often have to spend a long time waiting for treatment at clinics or hospitals. For example, one farmer described how one of his foreign workers had had a miscarriage; the farmer had his driver take her in his truck to the hospital at 4 p.m. The farmer went to the hospital the next day at 9 a.m. and they still had not assisted his worker; it was only when he arrived that they finally helped her. Human Rights Watch interview with a farmer, February 28, 2011.

[232]Sectoral Determination 13, No. 75 of 1997, http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-13-farm-worker-sector, art. 24, states that “[a] farmworker is entitled to at least four consecutive month’s maternity leave.” Maternity leave may start from four weeks before the expected date of birth or at a date deemed necessary for health reasons; employers may not “require or permit a pregnant farm worker or a farmworker who is nursing her child to perform work that is hazardous to her health or the health of her child.”

[233]Human Rights Watch interview with Gerald S. and Betty S., Lutzville, November 30, 2010.

[234]Human Rights Watch interview with Zimbabwean farmworkers, De Doorns, November 28, 2010.

[235]Human Rights Watch interview with a labor broker, Touws River, December 12, 2010.

[236]See, Human Rights Watch interview with a union leader, Stellenbosch, December 9, 2010.

[237]Human Rights Watch interview with a farmworker, Ceres, December 2, 2010.

[238]Sectoral Determination 13, No. 75 of 1997, http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-13-farm-worker-sector, art.21.