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Employment Laws: Violations and Legal Gaps Resulting in Human Rights Violations

Farm workers reported to Human Rights Watch multiple types of employer violations of the basic conditions of employment law and other labor-related laws. These multiple violations point to the extent of worker exploitation by employers and the failure of the government of South Africa to enforce workers’ legal protections and their constitutional right to “fair labour practices.”   We do not analyze the causes of workers’ exploitation, which may include structural factors such as global and domestic competition.

South African and foreign farm workers reported employer violations of worker entitlements to protection in the basic employment law, including failure to pay minimum wages, overtime, and public holiday rates; failure to grant paid sick leave and paid annual leave; and unlawful deductions from workers’ remuneration.   Farm workers also experienced significant problems accessing remedies and compensation for work-related injuries.  Foreign workers on contract have an additional obstacle to surmount to obtain compensation because it is government policy to pay compensation into workers’ bank accounts and it is difficult if not impossible for foreign contract workers to open bank accounts.  We observed on some farms the deplorable living conditions of workers and heard some workers complain of their experience of workplace violence.

Cumulatively the evidence of farm workers experiences suggests that the state is failing to ensure that workers enjoy even the minimum employment conditions provided in domestic law.  As a result, the state is failing to meet its obligations under the constitution to guarantee fair labor practices.  The state is also not meeting its obligations under international law to guarantee just and favorable conditions of work and decent work.256  

Employers’ failure to pay minimum wages

The Sectoral Determination establishes in rural municipalities (Area B), a minimum wage of R885 (US$126.97) per month for farm workers who work 45 hours per week and a minimum of R4.54 (US$0.65) per hour for those who work less than 45 hours per week.257  Human Rights Watch understands from Agri SA director of labour affairs that the use of a piece rate—the calculation of remuneration based on the amount a worker produces in an hour—is legal provided that a piece work arrangement is structured in a way that does not deny the worker the right to the prescribed minimum level of remuneration.258  Farmers or their organizations may apply to the minister of labour to replace or exclude any basic condition of employment, including the minimum wage rates.259 

An employer is required by law to give a meal interval of at least one continuous hour to a farm worker who works continuously for more than five hours.  The one-hour meal interval may be reduced to 30 minutes by mutual agreement.260  Meal intervals (as opposed to tea breaks) do not form part of ordinary working hours.261 

It was Human Rights Watch’s observation that most large-scale commercial farms were complying with the mandatory minimum wage rates.  Small commercial farmers and those less financially successful were more apt to evade the minimum wage law.  Black farmers in the former homelands on Trust land are arguably least likely to comply with the minimum wage law. 

The national farmer’s organization TAU issued a public statement that its farmers would not comply with the minimum wage increases announced in February 2006.262  The TAU official for the Soutpansberg region, Limpopo province, who hires only South Africans, said,

We’re not against a minimum wage but set it at a fair level.  Most farmers are not adhering, and I’m one of them.  I don’t put up the wages

Human Rights Watch was similarly informed that not all farmers in Weipe in Limpopo province were complying with the minimum wage.264  A farm owner in Weipe said he welcomed the minimum wage, but lamented the government’s failure to enforce it through labor inspections:  “Those of us who are compliant can’t compete with others.  We’re competing in the same markets.  We hear rumors or stories that some of the officials are being bribed.  Not only in our areas.  I know from the workers.”265  Another Weipe farm owner admitted that he was not paying the minimum wage increase because he had to stop producing cotton as he could not compete with cheap Chinese imports. He said he gave his permanent workers the option of retrenchment or pay per hour, with reduced hours in the off-season.266

A Zimbabwean permanent worker on another farm in Weipe, who did get paid the minimum wage, claimed that only 20 of the approximately 75 permanent workers were being paid the minimum (although Human Rights Watch did not interview any permanent worker at this farm who was not receiving minimum wage).  He and other Zimbabweans on the farm who earned the minimum wage expressed concern about the seasonal workers who were only earning R500 (US$71.74), despite working the same number of hours: “I know it because we are friends.  We show each other the pay slips.  Some of the seasonals have been here before me and they are getting that money [less than the minimum].”267  Seasonals were being paid by a piece rate arrangement, as he explained, and it obviously did not guarantee them a minimum wage.  “Some people are working for kgs [kilograms].  If you make so many boxes of spanspek and watermelons you can go beyond the minimum.  Some are working all day.  He’s paying them R500 [US$71.74].  He’s not showing these [to the labor inspectors].”268

The same Zimbabwean permanent worker criticized labor inspectors for being too easily bribed by farmers and for not visiting the workers. 

I have a problem on my mind.  Why doesn’t labour [inspection] come at the end of the year and check our pay slips.  Labour comes to boss.  He shows them his books.  They drink tea together.  He can give them a sheep.  You’ll never know.269

Other workers on farms in Mpumalanga also told us that labor inspectors visited only the employer and spoke only briefly or not at all to the workers themselves.  Inadvertently confirming the need for labor inspectors to verify the validity of farmers’ bookkeeping against worker realities, the TAU official for the Soutpansberg region, who mistakenly believed that piece rate was illegal even though he and other employers used it, said, “I don’t tell the Department of Labour.  I just cook the book.270    “Cooking the books” is an offense under section 92(b) of the Basic Conditions of Employment Act (BCE). 

According to this TAU official, the black farmers’ union allegedly made an unsuccessful attempt to get the government to approve a lower minimum wage for its members.271  He also said that many white farmers in Limpopo claim the most serious labor abuses are being perpetrated by black farmers whose farms are between Tshipise and Mutale in the former homelands.272   Human Rights Watch visited a farmer at Nwanedi, located in this area.  The plot holder said he paid his nine Zimbabwean workers R500 (US$71.74) per month, though he knew the minimum was around R800 (US$114.78) per month.  Just before we went to speak to the workers, he said he started Zimbabweans at R350 (US$50.22) per month.  Like some white farmers, he said he could not afford to pay the minimum.273  In fact, his workers told Human Rights Watch that only one of them earned R350 per month for a five-and-a-half day work week.  The other workers all earned less than R350 per month.274  A black smallholder farming tomatoes, chilies, maize, and potatoes in the vicinity of Tshipise said he paid his two South African farm workers R350 each per month.275

A 35-year-old Zimbabwean man who had just been deported from South Africa to Beitbridge, Zimbabwe, told us that he had worked illegally in South Africa for a black farmer.  He was the only worker on the farm in Maguni, near Njelele in Limpopo province.  He had been paid R215 (US$30.85) for two weeks, despite working 6 days a week from 7 a.m. to 4:30 p.m.  He was arrested by the police on the farm while he was working, after only two weeks in South Africa.  The police allowed him to get those of his possessions that were already packed and to collect his pay from his employer.276 

Human Rights Watch interviews with Mozambicans who work for Trust land farmers suggest that these workers are rarely, if ever, paid the minimum wage rate.  We interviewed eight Mozambicans who worked in Nkomazi East in the former KaNgwane homeland, where some 90 percent of Mozambicans who live in the Nkomazi Blocks (Nkomazi is divided into Nkomazi Block A, B, and C) reside.277 All but one did not have a work permit, even though they had resided in South Africa for a long time; many were old; and they were also often women heads of household.  One, a 66-year-old undocumented Mozambican woman who has lived in South Africa for 16 years, is one of seven Mozambicans working for a farmer in the Nkomazi Trust land.  She works from Monday to Friday from 7 in the morning until 2 in the afternoon (including a 30-minute tea break) for R15 (US$2.15) per day—that is, for R2.14 (US$0.31) per hour, or just over half the minimum wage.278  Another undocumented Mozambican, separated from her husband and supporting nine children, works for a farmer in the Trust lands from Monday to Friday, from 6 a.m. to 3 p.m., and gets paid R15 (US$2.15) per day.   Assuming a one-hour lunch interval, which the worker may or may not have had, she earns R1.88 per hour (US$0.27).279   A 61-year-old undocumented Mozambican who has lived in South Africa for 31 years has been working for a year for a farmer in Mangweni in the Trust lands.  The sole worker on the 12 hectare sugarcane farm, he is paid R400 (US$57.39) per month.280 

A Mozambican refugee who did not get a South African identity card during the amnesty for refugees recently stopped working for a black farmer in Komatipoort.  He was told he would be paid R15 (US$2.15) per day for an eight-hour day, six days a week, or R720 (US$103.30) per month.  In fact, he received only R100 (US$14.35) per month.281

A commercial farm near Hazyview, Mpumalanga, which employs casual labor—workers hired on a daily basis—to pick beans has a reputation for not paying the minimum wage (one of few such in the area).282  The farmer pays the workers R3 (US$0.43) per crate of beans.  Two 16-year-old girls whose parents are Mozambican said they usually picked about five to six crates per day, working eight-and-a-half hours per day (excluding a one-hour meal interval), five days a week.  They were paid about R200 (US$28.69) for 10 days or R20 (US$2.87) per day.  The girls were therefore earning only R2.35 (US$0.34) per hour despite working more hours a week (42.5 hours) than permitted by law.283  According to the law, an employer may not permit a child who is between 15 and 18 years old to work more than 35 hours in any week.284  One of the girls had been working on the farm for three years or since she was 13—a violation of the legal prohibition against employing a child who is under 15 years of age.285

Human Rights Watch found that people from the most vulnerable groups are working on this farm: women and children without work permits.  The farmer provides free transport for the workers who live in villages in Bushbuckridge, Limpopo, where there are very high numbers of former Mozambican refugees.  One of the 16-year-old girls described her co-workers and their motivation for working on the farm as follows:  “Most of the women here were born in Mozambique or their parents were born in Mozambique.  Many of the workers are younger than 18.  I don’t have an ID and other jobs need an ID. That is why I am working here.  Most people here don’t have an ID.  Our parents tried to get IDs for themselves and us children...”286

An undocumented Mozambican woman, despite having lived in the country since 1985, works as a sugarcane planter on a large farm along the Crocodile river near Komatipoort.  She did not know the name of the farm or farmer for whom she worked—she had started the job two months earlier—and her husband thought she worked for a black contractor.  She earns R600 (US$86.08) per month despite working five days a week for eight-and-a-half hours a day (excluding a one-hour lunch interval).287  Two Mozambican female farm workers, neither of whom had South African identity documents, worked on a commercial farm for R27 (US$3.87) per day, and were paid R322.50 (US$46.27) per fortnight if they worked six days per week (Monday-Friday and Saturday morning) and R295 (US$42.32) per week if they worked five days per week.288  Even when they worked on Saturdays, these women made only R645 (US$92.54) per month, still short of the minimum R885 (US$126.97) per month.  

On a commercial farm near the turn-off to Malelane and Jeppe’s Reef, two “temporary” workers—one a recently arrived Mozambican man, the other a South African woman who has worked on the farm for 13 years—were paid R600 (US$86.08) per month.289  Mozambican and South African temporary workers on a banana and avocado farm near Kiepersol were paid R400 (US$57.39) per fortnight or R800 (US$114.78) per month.  The Mozambicans on the farm included some with South African identity documents and others who had no legal right to work.290  A small commercial farm in the Hoedspruit area with 12 permanent workers (eight of them were Mozambican, five of whom had South African identity documents) paid them R700 (US$100.43) per month.291 

Ten documented Mozambicans whom Human Rights Watch talked to near Strydomblock on the roadside during their lunch hour work in sugarcane fields, and only get the minimum wage if they finish their portion.  If they fail to meet the piece rate target, they will get R600-R700 (US$86.08-100.43).292

Human Rights Watch visited only one large commercial farm south of Malelane in Mpumalanga where workers did not receive the minimum wage.  The farmer had applied in terms of the BCE Act to not have to pay the prescribed minimum wage because he had suffered five years of drought and could not afford to pay.  In 2005 he retrenched 100 permanent workers and has had to limit his use of seasonal workers.  He was told to first follow the proper procedures whereby all workers and management must be consulted and agree on whether to cut work days or hours.  His workers agreed to reduce the work week to 40 hours and accepted a piece rate arrangement.  He maintained half his labor force on the 2006 minimum because of this incentive system; the rest of his labor force received the 2005 monthly minimum wage of R785.85 (US$112.75).293

Employers’ failure to pay prescribed minimum rates for overtime, Sundays, and public holidays

The Sectoral Determination for the Farm Worker Sector stipulates that an employer “may not require or permit a farm worker to work more than (a) 45 hours in any week (b) nine hours on any day if the farm worker works for five days or less in a week; or (c) eight hours in any day if the farm worker works for more than five days a week.”294  These ordinary work hours may be extended, within specified limits, subject to a written agreement between the worker and employer.295  An employer who wants his workers to work overtime must obtain their agreement and comply with various restrictions on the number of overtime hours permitted,296 and pay at least 1.5 times the farm worker’s wage for ordinary hours, unless the employer and farmer agree to an alternative.297 Work on Sundays must be paid as overtime.298 A worker must explicitly agree to work on a public holiday and the employer must pay workers at least double the ordinary daily wage.299 

Human Rights Watch found a number of large commercial farms where workers were paid the minimum wage but provisions for overtime work and public holidays were ignored.  Small commercial farms and Trust land farmers who did not pay the minimum also sometimes violated the law governing pay for overtime and public holidays.  

On a large commercial farm on the Komatipoort-Mananga road, the workers (documented Mozambican and South African) were being paid the minimum wage but they complained that they were made to work unpaid overtime.  They told Human Rights Watch that they worked Monday to Friday, 5:40 a.m. to 2:30 p.m. with only a 30-minute tea break. 300  This amounts to nearly 45 ordinary hours of work per week.  They also said that they are required to work on some Saturdays, for which they receive no pay.  By law, the employer cannot require them to work on Saturdays without paying them for overtime.  On a Weipe farm, a Zimbabwean permanent worker we spoke to earned the monthly minimum wage but complained that he had to work overtime and did not get paid for it.301

A 34-year-old Mozambican woman with a South African identity document works in a banana packing house on a large commercial farm in Marloth Park.  She gets paid the minimum wage, R885 (US$126.97) per month, but they work Monday to Friday, 6 a.m. to 5 p.m., or over 10 hours per day (excluding a 45-minute lunch break); on Saturdays they work until 12:30 p.m. 302  They are therefore working overtime for at least two hours per day during the week without pay. Because they have already worked more than 45 ordinary hours between Monday and Friday, they should be paid overtime for work on Saturdays.  Instead, they are working on Saturday for no pay.  Worse, another Mozambican worker from the same farm said, “We don’t clock money for Saturday but if you do not work on a Saturday he deducts money for the other days of the week.”303 Documented Mozambican and South African workers we spoke to when we visited a farm on the Komatipoort-Mananga road also said they did not get paid for working on Saturdays, and if they refused to work on Saturdays the farmer threatened to deduct their Friday pay.304 

A documented Zimbabwean farm store worker, who said his hours were from 7 a.m. to 6 p.m. but that he often was required to work overtime, and even up to 2 a.m. during Christmas time, said he got paid R3.70 (US$0.53) per hour.305  Besides not paying the minimum hourly rate for farm workers (R4.54 or US$0.65), the employer had not obtained the worker’s consent to overtime work and did not pay, as required, the higher overtime pay rate.  On a farm in Hoedspruit, where documented and undocumented workers were paid less than the monthly minimum wage, they said they also had to work on weekends without being paid for overtime.306  So too did a Mozambican who has permanent residence and works for a Trust land farmer for less than the minimum wage.307  On a farm near Kiepersol, the “temporary” workers, all South Africans except for four undocumented Mozambicans, were paid R800 (US$114.78) per month.  A South African worker said, “We work everyday.  There is no weekend and no holiday for us.”308

Human Rights Watch obtained information about some cases where farmers were not paying double the ordinary pay rates, as the law requires, for work on public holidays.   Human Rights Watch visited a farm on a public holiday.  The farmer told Human Rights Watch that he was paying his bean-pickers, as the law requires, twice their normal rate.  The bean-pickers, all South Africans, told Human Rights Watch that they were getting 1.5 times rather than double their ordinary hourly wage.309 An undocumented Mozambican who works for a Trust land farmer ordinarily gets paid R15 (US$2.15) per day; on a public holiday she gets R16 (US$2.30) per day.310  The September pay slip of a woman who harvests tomatoes on a large commercial farm on the Komatipoort-Mananga road showed that she is paid the monthly minimum and that when she worked on a public holiday she was paid the minimum—R36.31 (US$5.21) per day (R4.53 or US$0.65 per hour for 8 hours)—instead of double pay.311  She seemed unaware that she should have been paid R72.62 (US$10.42) for the public holiday. 

Employers’ unlawful deductions from wages for accommodation

Employers may make deductions from workers’ wages for accommodation that the employer provides, subject to various qualifications.  The employer may make a deduction not exceeding 10 percent of the worker’s wage for accommodation.  This deduction may only be made in respect of one farm worker residing in any house.312  If the worker is earning R900 (US$129.12) (i.e. more than the minimum), the farmer may deduct R90 (US$12.91) for accommodation.  To deduct for more than one worker living in a house is unlawful.313   Hence, when workers live together in a house, say as husband and wife, it is illegal to make deductions for each worker. Where more than two farm workers reside in communal accommodation, the employer may not deduct in total more than 25 percent of the minimum wage of an individual worker.  The employer must deduct an equal amount for each worker in communal accommodation.314  Using the current minimum wage of R885 (US$126.97) per month, the employer may not charge more than a total of R221.25 (US$31.74).  Assuming five workers share the accommodation, because each of the five workers must have an equal amount deducted, each will pay R44.25 (US$6.35) per month.  

The Sectoral Determination contains additional restrictions concerning deductions for accommodation.  An employer may make a deduction for accommodation only if no deduction is made for electricity, water, or other services.315  Furthermore, a deduction for accommodation is permitted only if the house meets prescribed standards.  The house must have a roof that is durable and waterproof; glass windows that can be opened; electricity must be available inside the house if the infrastructure exists on the farm; safe water must be available inside the house or within 100 meters from the house; a flush toilet or pit latrine must be available in, or in close proximity, to the house; and the house must be not less than 30 square meters in size.316  

On a Weipe farm Human Rights Watch learned that workers who lived in small self-built clay houses without electricity and with toilets too far away for use were having R50 (US$7.17) per month deducted from their below minimum wages of R500 (US$71.74) per month.317  The owner of another farm in Weipe related how the Department of Labour, investigating health conditions in his compound after what was believed at first to be a case of meningitis, learned that he was deducting for housing that did not meet the prescribed minimum standard.  He now only deducts for electricity.318

On a number of farms in Mpumalanga, Human Rights Watch found other employers who were deducting for houses that did not meet prescribed standards.   During a visit to the compound on a large farm on the Komatipoort-Mananga road, we learned from workers (most of them documented Mozambicans but also South African farm workers who live on the farm) that there were three types of accommodation: houses with electricity, water, and toilets inside; houses with only electricity; and shacks built by the workers.  The more recently arrived workers, almost all Mozambicans, built shacks using sugarcane stalks for the walls and roof and plastic for the windows.  The employer deducted R85 (US$12.20) per month—10 percent of their monthly wages—for the shacks. 

Workers living in the shacks complained that they had to walk long distances to get to a water supply.  There were no toilets; they used the nearby banana plantations.   Even those workers living in houses with electricity but no inside water supply had no access to toilets outside the house.  Workers also reported that the employer deducted from the wages of husbands and wives or from relatives who shared accommodation. 319

On a neighboring farm that grew bananas, vegetables, and citrus, the employer deducted R90 (US$12.91) for accommodation from each of his (documented) Mozambican and South African workers’ wages of R880 (US$126.26) per month even though the accommodation did not meet the prescribed minimum standard.  Even those living in shacks had deductions from their wages.  Workers said the roofs leaked when it rained, the toilets were so far away from the house that the workers used the banana plantations instead, and the water was not safe to use.  A Mozambican who had been working on the farm for 16 years as a mechanic and driver complained about the quality of the water:  “We have a borehole.  We have a pipe which is used for sewerage on the farm.  When we use it, the water gets mixed up with the sewerage.  But we still drink that water.  If you open the tap, that rubbish will come first.”  The employer also deducted from the wages of both husbands and wives for accommodation.320  A driver who was visiting the compound from a nearby sugarcane farm said that his employer deducted R100 (US$14.35) from his R2,500 (US$358.68) monthly earnings (he worked 12 hours per day) for his housing.  Though he had electricity, he did not have water or a toilet and had a roof that leaked when it rained.321

Human Rights Watch found employers who deducted more than the legal maximum percentage of wages for accommodation.  On a farm compound just off the Komatipoort-Mananga road, South African women seasonal workers told us that they earned R850 (US$121.95) per month and paid R100 per month for their houses.  Their husbands were full-time workers.  Employers were violating the Sectoral Determination legislation which prohibits them from deducting more than 10 percent of farm workers’ wages for accommodation.322  

The owner of a large farm on the Komatipoort-Mananga road deducted for accommodation from the wages of both husbands and wives who shared the same accommodation.  Human Rights Watch spoke to a Mozambican worker on the farm while he was at work, a banana team leader.  He said he lived with his wife, also a worker on the farm, and their child in a single room in a three-roomed house.  They shared the kitchen with another family.  Both he and his wife had R89 (US$12.77) deducted for their accommodation.323

On a farm in Hoedspruit in Limpopo province, which employed 12 permanent workers including eight Mozambicans, there were houses on the farm for workers with families.  Three workers—all originally from Mozambique and of different legal status—told us that the employer deducted R80 (US$11.48) from their monthly wages of R700 (US$100.43) (less than the prescribed minimum wage and more than the maximum permitted deduction) for the accommodation.  Though the housing had electricity and water, there were no toilets inside or outside the houses, thus making the deductions illegal.  The workers also reported that the employer deducted for accommodation for husbands and wives who shared housing. 324

On the road to Strydomblock Human Rights Watch talked to documented Mozambicans farm workers on their lunch break.  The men had unlawful deductions made for accommodation because while they had electricity inside and water outside, they had no toilets inside or outside the house.  In addition, the men lived between five and eight in a room and had R85 (US$12.20) deducted from their wages.  Assuming they earned the minimum monthly wage (R885 or US$126.97), which they do not, the employer can only deduct a maximum of 25 percent of the minimum wage (R885 or US$126.97)—which is R221.25 (US$31.83)—for all the farm workers together in communal accommodation.325

A South African, who until recently was a contract worker on a sugarcane farm between Malelane and Hectorspruit, paid R65 (US$9.33) for two rooms on the compound.  The rooms met the prescribed housing standards.  However, she only earned about R400 (US$57.39) per month, so the deduction for accommodation exceeded 10 percent of her wage and was unlawful.326

Employers’ failure to provide paid sick leave

For every three years of employment with the same employer, a farm worker is entitled to an amount of paid sick leave equal to the number of days the farm worker would normally work during a period of six weeks.  Thus, if the farm worker works six days a week, after three years of employment with the same employer the worker will accrue 36 days of paid sick leave.327  New workers are entitled to one day’s sick leave for every 26 days worked in the first six months of work.328  To obtain paid sick leave, the farm worker must not be absent from work for more than two consecutive days or on more than two occasions during an eight-week period.329  Additionally, upon the request of the employer, the worker must produce a medical certificate stating that the farm worker was unable to work during the period of absence because of sickness or injury.   A medical certificate may be provided by, inter alia, a medical practitioner, a clinic nurse practitioner, a traditional healer, and a community health worker.330  We talked to many Mozambican and South African workers employed by commercial farmers and Trust land farmers who reported that their employers did not provide paid sick leave. 

Workers on a number of farms that Human Rights Watch visited alleged that their employers would not accept a medical certificate from the clinic. On a farm employing mostly Mozambicans, a South African woman worker said, “If you’re sick, you’ll go to the clinic at Komatipoort and get a letter.  Then he says he doesn’t accept the letter.  We must go to a Dr. [name withheld] in Komatipoort.  It costs R180 (US$25.82).  Otherwise, he doesn’t accept that you are sick and doesn’t pay you.”331   The owner of a neighboring farm also refused to accept a letter from the clinic validating that the worker was absent from work because of ill-health.  A Mozambican worker said, “If you went to the clinic, they just throw that letter away.  They say they want a doctor’s letter.”332   South African workers on another farm south of Malelane also said their employer refused to give paid sick leave and rejected all medical certificates.333 

A sugarcane cutter, originally from Mozambique and now a permanent South African resident, reported that he did not get paid sick leave.  Interviewed on the roadside next to his work place, he said,  “No, I do not get paid [if I’m sick].  Normally I bring a letter but it still doesn’t matter.  It is wrong not to pay me.  When you bring in your letter, the induna [team leader] just writes ‘absent’ rather than ‘sick.’”334  When we visited that farm compound, we asked a South African woman who is a seasonal worker if she had ever been sick.  She answered, “Yes.  I had flu.  Then I went to the clinic.  Yes, I did get a letter and showed it to him [the employer].  I did not get paid.  Even if you go to the doctor and show him the medical certificate, still he’ll deduct.”335 

Employers’ failure to provide paid annual leave

The Sectoral Determination requires that an employer grant paid leave to a farm worker.  If a farm worker has worked for 12 months, an employer must give the worker at least 21 consecutive days of leave on full pay.  There are similar pro rata provisions for farm workers who have not worked for 12 months.336  The employer can determine when the worker takes the leave or reach an agreement with the worker about when the leave should be taken.337  An employer must pay a farm worker leave pay before the worker’s leave period.338  Human Rights Watch found extensive violations of the provisions for paid leave.  Indeed, it was rare to find workers who got paid leave in compliance with the Sectoral Determination.

A sugarcane cutter—a Mozambican who is a permanent resident—has worked for the same farmer near Komatipoort for four years.  Though he is employed from December to April each year, he says he is registered as a permanent worker and contributes to the Unemployment Insurance Fund.  He has no leave.339

Five South African women who were permanent employees employed on a farm for periods varying from more than two years to over 13 years, told Human Rights Watch that they did not get leave.  From December 23 to January 1, they do not work.  But if they request leave during the year, they must work between December 23 and January 1.340  While the employer can determine when a worker takes annual leave, by law the employer is not entitled to deny the worker the prescribed minimum annual paid leave. 

At a banana plantation in Marloth Park, the South African and Mozambican workers said they received 15 days paid leave–six days fewer than they are entitled to by law.341

A South African seasonal worker at a pawpaw packing house near Hectorspruit has 22 days of leave owed to her, according to her pay slip.   However, her daughter, herself a seasonal worker at the packing house, says her mother is not given any paid leave.342

A Mozambican said she and her co-workers did not have South African identity documents and were regarded as temporary workers.  She said she had worked for the same farmer since 2001, weeding and picking oranges, but has never had paid annual leave.343 

A former Mozambican who is now a South African citizen works as a mechanic and welder on a commercial farm.  Though he has worked on the farm since 1986, he says he has never had leave.344 A Mozambican, now a permanent resident, when asked whether he had annual paid leave from his employer, said, “I’m 10 years now.  I’ve never [had leave].  He doesn’t agree.  Not even to a week.”345  Similarly, a Mozambican cane cutter who has had the same employer since 2001 told us he has never had paid leave.346 

An undocumented Mozambican who worked on a farm at Karino near the airport and whom we talked to at Agencia Algos in Nelspruit said his employer did not allow his eight Mozambican employees to go on leave.  According to the worker, “He [the employer] is saying you can’t go on leave unless you have work permits.”  The worker does return home but it is unpaid leave.347

Of the Mozambicans, typically undocumented, who worked for farmers in the former KaNgwane homeland, none reported having had paid annual leave. 

Contractors’ failure to implement the Sectoral Determination 

The Sectoral Determination has a provision that makes the “temporary employment service” that hires farm workers their employers.  The temporary employment service and its client, the farmer, “are jointly and severally liable” to comply with the Sectoral Determination in respect of its farm workers.348 

Human Rights Watch did not speak to any contractors in the farm sector, but evidence from farmers and workers and the comments of immigration officials suggest that contractors are not complying with the Sectoral Determination and are not being subjected to labor inspections. 

South of the Soutpansberg in Limpopo, some farmers contended they were resorting to contract labor because it enabled them to hire workers to do specific jobs for limited time periods, to benefit from specialized teams of workers, and to be freed from the burden of administering and housing often less efficient permanent labor.

The TAU regional committee chair said that he, like many other farmers in the Levubu area, used contractors but did not verify, as he is legally required to, that the contractors comply with labor laws, including minimum wage determinations: “Why must I police the contractor?  The Department of Labour must.  In practice, farmers aren’t checking on contractors.  You sign a contract that he’ll meet all labour laws but he doesn’t  

Human Rights Watch spoke to a 37-year-old South African woman who, prior to leaving her job because of ill-health, had worked for a black contractor.  Both the contractor and the worker had lived on the same sugarcane farm between Malelane and Hectorspruit.  The contractor’s 10 workers included Swati-speaking South Africans and Shangaan-speakers from Mozambique who did not have work permits.  They all worked nine-and-a-half hours a day (excluding one hour for lunch), five days a week, for R20 (US$2.87) per day—that is, they earned R2.11 (US$0.30) per hour rather than the minimum R4.54 (US$0.65) per hour.350  The undocumented foreigners worked for one month, she said, so they could get enough money to proceed to Johannesburg.  She did not have a deduction made for the Unemployment Insurance Fund, as the law requires for South African citizens.  Identifying the chief drawback of her job, she said,  “The problem is it was a contract.”

The situation of those working for sugarcane contractors in Mpumalanga, at least with respect to the minimum wage, differs from other contract workers.  Human Rights Watch was informed that sugarcane cutters, who are almost all contract workers typically earn much more than other farm workers.   The sugar industry was concerned that during the cane cutting season in 2006 there had been a shortage of cane cutters, sending their wages higher than usual.351

Workers’ compensation

Workers’ compensation is governed by the Compensation for Occupational Injuries and Diseases Act, 1993 (No. 130 of 1993, amended by No.61 of 1997).  All employers are required to contribute to the workers’ compensation fund and even foreign employees who work under contract are covered.   The Act provides for and deals with injuries, disablement, disease, and death caused by work-related activities.  The most frequent complaint made by workers was that their employers did not apply for compensation when they were injured on duty.  Human Rights Watch did receive a few complaints about workers not receiving compensation after employers had applied for it.  

A group of South African women who worked at a farm in Mpumalanga alleged that their employer dismissed workers’ claims for compensation for work-related injuries.  One woman said,  “One lost his finger.  He requested to be paid for his finger.  They said: ‘We’ll pay you bags of cement.’… He’s a young man.  That happened last year.”352

A South African plumber on a banana and avocado farm near Kiepersol had an accident on a vehicle at work.  He broke both arms and could not work for a year.  He went home.  He received neither medical assistance nor compensation for his work-related injury.  When he had recovered, he returned to work on the same farm.353

Documented Mozambican workers on the Strydomblock roadside volunteered that their employer did not compensate workers for injuries and work-related deaths:

Some get injured, losing their fingers.  Some die.  But the farmer doesn’t take care of us.  There are some who died a long time ago.  Last year one died.  He was trapped by the cargo. [The men load stones from the fields onto tractors so they can be thrown away.]  He was taken to Komatipoort mortuary.  The only person who came there was the father. But the farmer did not take care of him.  The farmer was supposed to assist the person with travel as he was from Mozambique and also with pay as he’d been working a long time.  Even the father of the corpse did not get hold of the corpse.354

A Mozambican man, who has a South African identity card and who works as a motor mechanic and welder on a farm, claimed that a Mozambican worker had lost a toe on duty.  The injured man was apparently told by the farmer that he could not get compensation because he was a Mozambican (in fact the worker had a South African identity card).  Regardless of his legal status, the farmer was obliged by law to claim for medical assistance and compensation for the injured worker.355

A Mozambican woman, a documented worker employed at the farm in Marloth Park, related her own experience with a work-related injury:  “I personally once fell from a trailer when we just reported to work and at hospital I was given 14 days but because I was not going to get money for the days I decided to go back while the hand was still painful.”356 A South African woman who works on a farm near Komatipoort said, “Those injured at work are not paid. There was a lady who was injured at work.  She was a packer.  Her leg was broken.  She had a plaster [cast] on for three months.  She was off work and was not paid.”357

Undocumented workers are not covered by the workers’ compensation fund but employers are still morally and legally, at least in terms of international law, obligated to compensate workers for work-related injuries.  During Human Rights Watch’s visit to IOM’s reception center, we encountered two individuals who had been working illegally in South Africa and were injured on duty but received no compensation.   One worked for a building contractor in Warmbad (Bela Bela) near Pretoria for R60 (US$8.61) per day or R600 (US$86.08) per fortnight.  He started work for this contractor on June 6, 2006.  One June 22, a wall fell on his leg.  His employer took him to Warmbad hospital, which transferred him to Polokwane hospital, where he stayed for eight weeks.  He did not pay for medical treatment.  He was then sent to Garankuwa hospital for further surgery. He elected to return to Zimbabwe for treatment.  While he was well treated by the police who provided him with transport between Polokwane and Garankuwa, and by the hospitals who treated him for free, he now faces the costs of medical treatment and months of unemployment.  IOM personnel were helping the man to claim compensation from his employer.358  The other case was of a Zimbabwean who lost four fingers working illegally in Limpopo province for an employer in the forestry sector.  The IOM, with the help of Nkuzi Development Association, was going to locate the employer and demand that the employer provide compensation.

Besides workers’ allegations about employers’ failure to apply for workers’ compensation, Human Rights Watch also heard different complaints about the implementation of the workers’ compensation scheme from workers and employers.   One problem arises because of the government policy of paying compensation into bank accounts, and bank policy of not allowing foreigners to open accounts.  Another problem concerns bureaucratic delays in receiving compensation.

The owner of a farm south of Malelane criticized the bureaucracy of the workers’ compensation scheme:

 I think it is a rip-off.  We paid R60,000 [US$8,608.32] last year.  A few people benefited and you had to fight for it.  I haven’t had adequate returns on what I’ve put in.  One woman had a problem with her knees.  I don’t know if she ever got it in the end.  The assistant truck driver drove into something—one person was killed, one became a paraplegic.  Yes, they paid for the wheelchair.  They said we should employ him.  He couldn’t sleep well.  He got pneumonia and then he died.  Then when he died there was no compensation.  I just know it isn’t a smooth thing.359 

In Limpopo, a documented Zimbabwean worker who got injured on the job on a farm in 2004 in Weipe, described how he failed to receive compensation:

Someone drove on top of me with my tractor.  I got a claim number.  From 2004 to the present, nothing has happened.  I didn’t try to find out because I’m just a Zimbabwean.  I’ve never been to Pretoria.  I just went to Pietersburg [Polokwane] hospital.  The ambulance drove me there.  Another guy, someone drove on top of him.  He broke a leg.  He was unable to continue to work.  He left.  One guy cut [off] a finger.  He stayed here.  They sent him a card from Pretoria.  This is your claim, the owner told him.  But to this day he’s not seen any money.360 

Human Rights Watch has received multiple confirmations that it is the government’s policy to pay all work-related compensation money directly into a claimant’s bank account.361  However, for foreign workers this creates an automatic barrier as it is bank policy to not allow foreigners to open bank accounts.  A Limpopo farmer attributed the problem with paying compensation to Zimbabwean migrants to the requirement that workers produce a South African identity document.  “If you can’t produce a South African identification document, there’s a presumption of illegality.”362  The issues are interlinked. A Foreign Migration Studies Programme publication noted, 

Although current banking legislation technically prevents anyone except permanent residents and citizens from opening bank accounts, this policy may be waived on a discretionary level as often done with people in the country on temporary contracts.  Under pressure from lobbying groups, some banks have now begun extending services to refugees, but are still unwilling to open accounts for most other African immigrants who are unlikely to have the requisite thirteen digit ID number, foreign passport, or a formal employment contract.363 


Workplace violence 

The right to bodily integrity and to be protected from acts of violence is incorporated in section 12 of the South African constitution, which grants “everyone” the right to freedom and security of person, including the right “to be free from all forms of violence from either public or private sources.”  Human Rights Watch has, however, documented several cases of foreign migrants, documented and undocumented, alleged to have been victims of workplace violence by other workers, private security officials, and/or employers.  Some workers reported these instances of assault to the police, others did not.   Fear of losing their jobs or, if undocumented, of being deported, discourages workers from reporting workplace violence.  In one case, the worker believed the police would support the abusive employer who had been a policeman and had friends in the police force.

Three Zimbabwean men whom Human Rights Watch met on the N1 highway en route to Pretoria described how they had just walked some 20 kilometers from a farm in Doreen.  All three had worked there for only three days and had left after being assaulted by the foreman. The men, all in their mid-twenties, were seeking work in South Africa for the first time. One, whose carpentry shop in Chiredzi, Zimbabwe, had been destroyed during Operation Murambatsvina,364 said,

I was hired by Mr. [name provided].  I met someone who told me Mr. [name provided] is employing people.  So I went there.  My job was pruning grapes.  The food on the farm gave me and the two others with me diarrhea so we could not work properly.  We were going to the toilet every hour.  The manager [foreman] was angry.  He said, “We can’t work with you like this.”  The manager was a black man [name provided].  When I got back from the loo, he beat me, saying, “Where were you?”  He beat me three times.  Then he expelled me saying, “We can’t work with you when you’re not fit.”365

Human Rights Watch talked to a 52-year-old Zimbabwean from Beitbridge who has worked on a farm in Tshipise since 2004 and who has a work permit.  He said he had been beaten by four private farm security officials who arrested him, another Zimbabwean, and three South Africans: 

I was arrested on October 9, 2005, while I was working on the farm.  I’m a tractor driver.  They accused us of poaching wild animals on the owner’s game farm. We denied.  In the car driven by the white farmer, we were taken to the security company car.  They took us to the bush.  At the bush, we were instructed to get the snares from the bush.  There we were brutally assaulted with batons.  Late at night, around 7 pm, they took us to Musina to their private-like jail.  We slept there.  Next day we were taken to the farm.  That morning they assaulted us.  Again we were being forced to point to snares.  They start taking statements without asking us anything.  They take us to the owner.  Then to Musina in the bush.  We were kept there.  We were not given any food, no water.  Around 3 pm we were taken to the police station.  We were locked into the police cells.  On the third day, we went to court.  The case was remanded [on two occasions].  On March 15 the case was withdrawn for lack of evidence.  I want to take civil action against the security officials.366 

The Nkuzi Development Association’s lawyer who represented the man said the police wanted to deport the two Zimbabweans (one has since died) but they could not because they had permits.367

An undocumented Mozambican farm worker recalled how his previous employer, a black farmer in Komatipoort, used to beat him and his co-workers.  A former refugee, this worker did not apply for the amnesty for Mozambican refugees in 1999-2000 because he was ill and stayed with a traditional healer for three years.  

[The farmer] did beat me.  My ribs are [still] painful…. He was beating each and everyone there.  Even women there, he was beating everyone.  If you take your time to do the work, he’d beat you.  When he has given you that task and you’re not finished to do, you’d not knock off until 11 at night.  He’d take his car and give you lights until you’d finished. 

Asked if he thought to report the farmer, the worker said, 

There was no way to report him because he was a policeman before.  If you go to the police station, they will want to come and check.368

At Komatipoort police station, Human Rights Watch talked to a Mozambican awaiting deportation.  He had come to South Africa in 1982 as a refugee but had not qualified for amnesty because he had visited Mozambique after 1992.  In 2003-04 when he was a contract worker, cutting trees to make way for banana planting, he witnessed the farm owner tie a worker upside down.  “I’m the witness of the person he tied up.  He also assaulted me.  Twenty-third of October we’ll be going to court with [farmer’s name supplied].”369

A police officer, present when we spoke to the Mozambican man who was to be a witness in the upcoming trial of the farmer, said of the Department of Labour , “It has work to do on farms.  You can see.  We are still having farmer assaults.”  He referred to another case of assault by a farmer.  “On [name supplied] farm, workers wanted to know from the farmer what would happen when he sold the farm.  The farmer assaulted a worker.  But you can’t write that.  He [the worker] did not report.  The employer phoned us and said there was a strike.  The Department of Labour, unions, and police went there. The farmer called the police.  It was an illegal strike.”370 

A South African and two documented Mozambican farm workers in the sugarcane fields on a farm in Strydomblock complained that the farmer beat them if they made mistakes.  A Mozambican working on the farm since 1997 said, “He’s very abusive.  He beat us all, even these old men.  But we persevere….  Sometimes he’s a good man.  We work very nicely.  But sometimes you make a mistake, he must beat you before you sit down and talk.  We were spraying the manure.  A short space of land was left out.  The person who was doing it got beaten.  It was not me, yes.  But I was working with him.”371  Asked if he had ever been beaten, a 24-year-old Mozambican—a recently hired sprayer on the farm—said,  “Yes.  He pushed me and I fell.”  He went on,

The one who got beaten went to Komatipoort to lay a charge.  But we don’t have a report back.  He still works here and everything is good with the farmer.  No, it’s not unusual.  If you have done a mistake, he’ll push you or hit you.372 

The South African, a tractor driver who has worked on the farm since 2001, said he had never been beaten.  Asked if assaults by the farmer were a problem, he said, “It does happen.  Yes, I have seen it happen.… I can’t remember the month, one young man, they didn’t understand each other.  Then he beat him.  It was over the mixing of manure.  It’s not easy to mix the manure.…  He [the farmer] is a short-tempered person.”373

A group of documented Mozambican workers to whom Human Rights Watch spoke during their lunch hour said their employer sometimes beat them.  A worker who had come to the farm in 2005, recounted the circumstances leading up to his assault by his employer.  “The problem started when the irrigation pipes were twisted.  When I was far away, he called.  ‘Why did you not run when I called?’ said the farmer.  I said, ‘I was not aware you’d called.’  Then he slapped me in the face.  Then the farmer talked to the induna.”

Housing and living conditions

The Sectoral Determination regulates deductions for housing and establishes housing standards that must be met for the employer to make lawful deductions.   It does not deal with the issue of housing for farm workers when employers choose not to provide housing for their workers.   Two categories of farm workers are most affected when farmers opt not to provide housing: South Africans whose homes are far from their workplace, and foreign workers on contract, whose temporary work and residence status make it unreasonable for them to invest in building a house, even if they were able to obtain land.  

There are a number of reasons why farmers are electing not to provide housing for workers.  A number of farmers along the Limpopo border told Human Rights Watch that the maximum deductions allowed for accommodation in the Sectoral Determination and the high prescribed standards for accommodation give them no incentive to provide housing for farm workers.  By contrast, in the apartheid era, white commercial farmers received state subsidies to build housing for workers.   In Mpumalanga farmers appear to be moving away from housing workers on their farms.  Mpumalanga farmers believed that their security was less compromised if they did not have farm workers living on the farm.   As in Limpopo, farmers also often cited fear of the Extension of Security of Tenure Act (ESTA), which attempts to protect “occupiers” who reside on land from eviction without due process.374  

Regardless of employer preferences with respect to the provision of worker housing, the government has constitutional obligations to ensure that all have access to adequate housing.   Section 26(1) of the constitution states, “Everyone has the right to have access to adequate housing.”  Section 26(2) says, “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”  The Constitutional Court in its 2000 ruling interpreted the state’s obligation to ensure the “progressive realization” of housing rights present in the constitution and article 11 of the ICESCR to mean that accessibility should be progressively facilitated by the state through examining and eliminating legal, administrative, operational, and financial barriers to access over time.375  The extent of the state’s obligation to provide adequate housing for non-citizens who have the right to work in South Africa, as opposed to citizens, is unclear under current constitutional jurisprudence.  However, unless the government devises a housing policy for farm workers, it will be at risk of contravening its constitutional obligation to establish measures for the progressive realization of access to adequate housing for everyone.   

A 2006 South African Human Rights Commission (SAHRC) report on South Africa’s compliance with the provisions of the ICERD acknowledged that the government had shown a commitment towards the progressive realization of the right to adequate housing, as mandated in the constitution.  However, the SAHRC also noted that “the state’s inability to tailor its housing policies to address the needs of the poor and vulnerable suggests that the government still has to comply with its obligations.”376  The report referred to the deplorable conditions under which farm workers on white-owned farms live, their vulnerability to losing their housing when they cease to be employed, and the particular vulnerability of women and children because they are often treated by landowners and the courts as secondary occupiers.   The report contends,  “Although farm workers are included in programmes relating to housing and the Constitution [sic], they are unable to take advantage of these programmes because of the nature of the demands of their profession.  In some instances, farm dwellers are unaware of their socio-economic rights and of the necessary steps that can be taken to access these rights.”377



256 ACPHR, arts. 5 and 15; ICERD, art. 5; ICESCR, art. 7.

257 Sectoral Determination 13: Farm Worker Sector, sections 2 and 3. These figures are for what the Sectoral Determination defines as “ordinary” hours, as opposed to overtime hours, for which see below.

258 Human Rights Watch email correspondence with Kobus Kleynhans, director of labour affairs, Agri  SA, December 6, 2006.

259 Basic Conditions of Employment Act, 1997, section 50(1)(b).

260 Sectoral Determination 13: Farm Workers, section 18.

261 Human Rights Watch email correspondence with Kobus Kleynhans, director of labour affairs, Agri SA, November 28, 2006.

262 Neesa Moodley, “Transvaal Agricultural Union Vows to Fight Labour Minister. Minimum Farm Wages Draw Flak,” Business Report (IOL online edition), April 4, 2006, http://www.busrep.co.za/index.php?fSectionId=&fArticleId=3188566 (accessed July 11, 2006).

264Human Rights Watch interview with white commercial farmer who is a TAU official for the Soutpansberg region, April 29, 2006; Human Rights Watch interview with leader of Echo 4 military unit, Limpopo border, April 27, 2006.

265 Human Rights Watch interview with white commercial farmer, Weipe, April 27, 2006.

266 Human Rights Watch interview with white commercial farmer, Weipe, April 26, 2006.

267 Human Rights Watch interviews with Zimbabwean farm workers, Weipe, April 27, 2006.

268Human Rights Watch interview with Zimbabwean farm worker, Weipe, April 23, 2006.

269 Ibid.

270Human Rights Watch interview with white commercial farmer who is a TAU official for the Soutpansberg region, April 29, 2006.

271Ibid.

272 Ibid.

273 Human Rights Watch interview with black farmer, Nwanedi, April 30, 2006.

274 Human Rights Watch interview with nine undocumented Zimbabwean farm workers, Nwanedi, April 30, 2006.

275 Human Rights Watch interview with black farmer, on Tshipise road, April 30, 2006.

276 Human Rights Watch interview with Zimbabwean deportee, IOM reception center, Beitbridge, October 10, 2006.

277 Human Rights Watch interview with Rachel Nkosi, director of Masisikumeni Women’s Crisis Center, Nkomazi Block A, September 24, 2006.

278 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

279 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

280 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

281 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

282 Forced Migration Studies Programme interview with farm worker in the Hazyview area, September 2006. 

283 Forced Migration Studies Programme interview with farm worker, Hazyview, September 25, 2006.

284 Sectoral Determination 13: Farm Worker Sector, section 25(7)(b). 

285 Ibid., section 25(1)(a).

286  Forced Migration Studies Programme interview with induna and female workers, September 25, 2006.

287 Human Rights Watch interview with undocumented Mozambican worker and her husband, Nkomazi Block A, September 24, 2006.

288 Nkuzi Development Association interview with Mozambican women, Nkomazi Block A, September 24, 2006.

289 Human Rights Watch interview with Mozambican and South African farm worker, south of Malelane, September 25, 2006.  

290 Forced Migration Studies Programme interview Mozambican and South African farm workers, Kiepersol, October 10, 2006. 

291 Forced Migration Studies Programme interview Mozambican and South African farm workers, Hoedspruit, September 26, 2006.

292 Human Rights Watch interview with Mozambican workers on the roadside, September 29, 2006.

293 Human Rights Watch interview with commercial farmer, south of Malelane, September 25, 2006.

294 Sectoral Determination 13: Farm Worker Sector, section 11.

295 Ibid., section 12.

296 Ibid., section 13.

297 Ibid., section 14.

298 Ibid., section 16. 

299 Ibid., section 20. 

300 Human Rights Watch interview with South African and Mozambican workers on farm south of Komatipoort, September 28, 2006.

301 Human Rights Watch interview with Zimbabwean farm worker, Weipe, April 27, 2006.

302 Nkuzi Development Association interview with Mozambican worker, Nkomazi Block A, September 24, 2006. 

303 Nkuzi Development Association interview with Mozambican worker, Nkomazi Block A, September 24, 2006. 

304 Human Rights Watch interview with South African and Mozambican workers, south of Komatipoort, September 29, 2006.

305 Human Rights Watch interview with Zimbabwean farm store worker, Tshipise, April 30, 2006.

306 Forced Migration Studies Programme interview with Mozambican workers, Hoedspruit, September 26, 2006.

307 Human Rights Watch interview with documented Mozambican worker, Nkomazi Block A, September 24, 2006.

308 Forced Migration Studies Programme interview with South African worker on farm, Kiepersol, October 10, 2006.

309 Human Rights Watch interview with South African seasonal workers, south of Malelane, September 25, 2006.

310 Human Rights Watch interview with undocumented Mozambican worker, Nkomazi Block A, September 24, 2006.

311 Human Rights Watch interview with female worker, Komatipoort-Mananga road, September 29, 2006.

312 Sectoral Determination 13: Farm Worker Sector, section 8(1)(b).

313 Ibid., section 8(4).

314 Ibid., section 8(6)(a) and (b).

315 Ibid., section 8(2)(d).

316 Ibid., section 8(3).

317 Human Rights Watch interview with Zimbabwean worker, Weipe, April 23, 2006.

318Human Rights Watch interview with white commercial farmer, Weipe, April 26, 2006.

319 Human Rights Watch interview with South African and documented Mozambican workers, Komatipoort-Mananga road, September 28, 2006.

320 Human Rights Watch interview with documented Mozambican worker, Komatipoort-Mananga road, September 28, 2006.

321 Human Rights Watch interview with worker, Komatipoort-Mananga road, September 28, 2006.

322 Human Rights Watch interview with South African seasonal workers, Komatipoort-Mananga road, September 29, 2006.

323 Human Rights Watch interview with documented Mozambican worker, Komatipoort-Mananga road, October 2, 2006. The co-worker who translated for us during this interview, a South African woman who had been hired by the farmer to teach English and computer classes, said that several years ago she had stayed together with her husband in one room in a four-room house in the compound.  The house had two bedrooms, a kitchen, and a living room.  At the time, she was working in the creche on the farm.  Each month R55 (US$7.89) was deducted from her wages and R150 (US$21.52) from her husband’s.   Human Rights Watch interview with South African teacher, Komatipoort-Mananga road, October 2, 2006.

324 Forced Migration Studies Programme interview with Mozambican workers, Hoedspruit, September 29, 2006.

325 Human Rights Watch interview with documented Mozambican workers, Strydomblock road, September 29, 2006.

326 Human Rights Watch interview with South African worker, Driekoppies, September 23, 2006.

327 Sectoral Determination 13: Farm Worker Sector, section 22(1).

328 Ibid., section 22(3).

329  If a worker takes sick leave for more days than provided for in the Sectoral Determination, the worker is not entitled to be paid for those days.   

330 Ibid., section 22(6) and 22(7).

331 Human Rights Watch interview with South African female worker, south of Komatipoort, September 28, 2006.

332 Human Rights Watch interview with Mozambican worker, south of Komatipoort, September 28, 2006. 

333 Human Rights Watch interview with South African workers, south of Malelane, September 25, 2006.

334 Human Rights Watch interview with Mozambican worker, south of Komatipoort, September 29, 2006.  

335 Human Rights Watch interview with South African seasonal worker, south of Komatipoort, September 29, 2006.

336 Sectoral Determination 13: Farm Worker Sector, section 21.

337 Ibid., section 21(5)(a)&(b).

338 Ibid., section 21(10). 

339 Human Rights Watch interview with Mozambican permanent resident, south of Komatipoort, September 29, 2006.

340 Human Rights Watch interview with South African women workers, south of Komatipoort, September 29, 2006.

341 Nkuzi Development Association interview with Mozambican and South African workers, Nkomazi Block A, September 24, 2006.

342 Human Rights Watch interview with South African seasonal workers, Mangweni, September 30, 2006.

343 Human Rights Watch interview with Mozambican worker, Nkomazi Block A, September 24, 2006.

344 Human Rights Watch interview Mozambican worker, Nkomazi Block A, September 24, 2006.

345 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

346 Human Rights Watch interview with undocumented Mozambican, Nkomazi Block A, September 24, 2006.

347 Human Rights Watch interview with undocumented Mozambican worker, Agencia Algos, outside the office, October 3, 2006.

348 Sectoral Determination 13: Farm Worker Sector, section 33.

350  Human Rights Watch interview with South African ex-worker, Driekoppies, September 23, 2006.

351 Human Rights Watch interview with Brian Sugden, TSB, Malelane, September 27, 2006.

352 Human Rights Watch interview with group of South African female workers, on the roadside south of Komatipoort, September 29, 2006.

353 Forced Migration Studies Programme interview with South African worker, Kiepersol, October 10, 2006.

354 Human Rights Watch interview with group of documented Mozambican workers, on the Strydomblock road, September 29, 2006.

355 Human Rights Watch interview with Mozambican worker, Nkomazi Block A, September 24, 2006.

356 Nkuzi Development Association interview with Mozambican worker, Nkomazi Block A, September 24, 2006.

357 Human Rights Watch interview with South African worker, south of Komatipoort, September 28, 2006.

358 Human Rights Watch interview with Zimbabwean deportee, IOM reception center, Beitbridge, October 12, 2006.  We were shown the letter from Warmbaths (Warmbad) hospital to Gweru hospital, dated September 27, 2006, and the letter from the social worker, Limpopo provincial government to the Department of Home Affairs, Government of Zimbabwe, dated October 6, 2006. 

359 Human Rights Watch interview with farmer, south of Malelane, September 25, 2006.

360 Human Rights Watch interview with Zimbabwean farm worker, Weipe, April 23, 2006.

361 In email correspondence with Kobus Kleynhans, director of labor affairs, Agri SA, January 29, 2007, Human Rights Watch was told that it has been the policy to pay compensation into bank accounts for some time, and as of April 2007, compensation would only be paid electronically into bank accounts; no checks would be issued.

362 Human Rights Watch interview with white commercial farmer, Weipe, April 24, 2006. 

363 Landau, Ramjathan-Keogh, and Singh, “Xenophobia in South Africa and Problems Related To It,” p. 23.

364 Operation Murambatsvina was an unprecedented government campaign of forced evictions and demolitions in the urban areas of Zimbabwe.  See Human Rights Watch, Evicted and Forsaken.

365  Human Rights Watch interview with three undocumented Zimbabweans, on the N1 highway near the Tshipise turn-off, April 23, 2006.

366Human Rights Watch interview with Zimbabwean farm worker, Tshipise, April 22, 2006.

367Human Rights Watch interview with Shirhami Shirinda, Nkuzi Development Association, Tshipise farm, April 22, 2006.

368 Human Rights Watch interview with undocumented Mozambican worker, Nkomazi Block A, September 24, 2006.   

369 Human Rights Watch interview with undocumented Mozambican worker, Komatipoort police station, September 26, 2006.  Later that morning, Human Rights Watch was present when DHA officials interviewed the man.  They knew about the pending court case and sought to verify when the case would be heard to ensure that the man was not deported before the court hearing.

370 Human Rights Watch interview with policeman, Komatipoort police station, September 26, 2006.

371 Human Rights Watch interview with Mozambican farm worker, Strydomblock, September 27, 2006.

372 Human Rights Watch interview with Mozambican farm worker, Strydomblock, September 27, 2006.

373 Human Rights Watch interview with South African farm worker, Strydomblock, September 27, 2006.

374 The human resources manager of a company in Mpumalanga said the company no longer housed workers in compounds because of the Extension of Security of Tenure Act.  The company, which produces bananas and sugarcane, employs over 700 workers, including permanent, seasonal, and temporary workers.  All the workers must have South African identity documents.  In 2003 when the company purchased a farm that had a compound, the company destroyed the houses after the human resources manager had negotiated with chiefs in nearby Naas for land for the Mozambican workers who were living in the compound to build new homes.  “We organized with chiefs to get them land.  When we demolished the buildings, we’d give them [the workers] the roofs and the windows. I went myself to the chiefs and negotiated a price—R250—for each site.  It’s a good thing because of this ESTA.   We said we’ll organize a site.  Now you must build your house.  The roofs and windows were just extra.” Human Rights Watch interview with human resources manager, large company on Komatipoort-Mananga road, September 27, 2006.

375  Constitutional Court of South Africa.  Government of the Republic of South Africa, Premier of the Province of the Western Cape, Cape Metropolitan Council, Oostenberg Municipality v. Irene Grootboom and Others. Case CCT 11/00, para 45.  According to the Constitutional Court, other agents, such as farmers, must be enabled by legislators and other means to provide housing: “A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of houses” (para. 35).     

376  SAHRC, "Shadow Report on South Africa's Compliance with the Provisions of the International Convention against all Forms of Racial Discrimination," p. 39.

377  Ibid., p. 40. The report’s reference to “the demands of their profession” is an allusion to the needs of farm workers to live in reasonable commuting distance to their workplace.