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Employment Laws: Violations and Gaps Resulting in Human Rights Violations

Human Rights Watch found violations by employers of the basic conditions of employment of farm workers that are provided for in the Sectoral Determination for the Farm Worker Sector, which became operational on March 1, 2006.  The violations include: failure to pay minimum wages; overtime without workers’ consent and failure to pay overtime rates; remuneration based on piece rate; and unlawful deductions from workers’ remuneration.  The failure of employers to comply with the basic conditions of employment for farm workers also contravenes section 23 of the constitution that provides for everyone to enjoy fair labor practices. Human Rights Watch also learned of legal gaps and exclusions affecting farm workers in the Basic Conditions of Employment Act, 1997, and other labor laws.  The Sectoral Determination is silent about who should provide decent housing and living conditions for farm workers.  All these violations affect all farm workers, and not just foreign migrant workers.

Other labor law violations affect exclusively foreign migrant workers.  The Sectoral Determination does not regulate employer deductions from workers’ wages for the cost of complying with corporate permit provisions.  Also, employers must contribute to the workers’ compensation fund but, in practice, foreign migrants are not able to receive compensation.  These legal gaps impede the ability of foreign migrants to enjoy “fair labor practices” as provided for in the constitution. Zimbabwean migrants also were victims of workplace discrimination.   

Employers’ failure to pay minimum wages, their unlawful use of piece rate, and their disregard of overtime rules

Employers who do not pay the minimum wage or minimum hourly rate violate sections 2 and 3 of the Sectoral Determination, and the constitutional right of migrants to “fair labor practices.” 

The farmer’s organization TAU issued a public statement that its farmers would not comply with the minimum wage increases announced in February 2006.¹³⁴  The TAU official for the Soutpansberg region, 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.... My permanent workers—tractor drivers and foremen—get more than the minimum.  The others are getting the old minimum wage of last year.  I explained to the workers and they can see.  I have less crop.  My financial situation is forcing me to do this.”¹³⁵

The TAU regional committee chair also said that he, like many 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 Labor must.  In practice, farmers aren’t checking on contractors.  You sign a contract that he’ll meet all labor laws but he doesn’t.... I have 30 contractors.”¹³⁶  

The black farmers’ union allegedly made an unsuccessful attempt to get the government to approve a lower minimum wage for its members.¹³⁷  Many white farmers claim the most serious labor abuses are occurring on black commercial farms between Tshipise and Mutale.¹³⁸   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) per month, though he knew the minimum was around R800 (US$113) per month.  Just before we went to speak to the workers, he said he started Zimbabweans at R350 (US$50) per month.  Like some white farmers, he said he could not afford to pay the minimum.¹³⁹  In fact, his workers told us 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.¹⁴⁰  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.¹⁴¹

Human Rights Watch was similarly informed that not all farmers in Weipe district were complying with the minimum wage.¹⁴²  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.”¹⁴³  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.¹⁴⁴

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 their seasonal worker colleagues who were only earning R500 (US$71), 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].”¹⁴⁵ 

The explanation, according to both the owner and his workers, was that seasonal workers at this farm were paid on certain days of the week according to the piece rate system.  A piece rate method of calculating remuneration is based on an industry standard of the amount a worker should be able to produce in an hour.  The minister of labor is empowered by section 55(g) of the Basic Conditions of Employment Act, 1997, to prohibit piece work in a Sectoral Determination, and section 4 of the Sectoral Determination for farm workers duly provides for the wage or remuneration of a farm worker to be calculated only by reference to the farm worker’s ordinary hours of work.  Moreover, when a piece rate system results in workers not receiving the minimum wage (because their production does not meet the industry standard), it violates the constitutional provision for “fair labor practices.”

The TAU official for the Soutpansberg region said, “Piece rate is not allowed by law.  But farmers use it.  I don’t tell the Department of Labor.  I just cook the book.”¹⁴⁶  “Cooking the books” is an offense under section 92(b) of the Basic Conditions of Employment Act, but a Zimbabwean permanent worker at the Weipe farm mentioned above highlighted the absence of scrutiny: “I have a problem on my mind.  Why doesn’t labor [inspection] come at the end of the year and check our pay slips.  Labor comes to boss.  He shows them his books.  They drink tea together.  He can give them a sheep.  You’ll never know.  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.  He’s not showing these [to the labor inspectors].”¹⁴⁷

Section 13 of the Sectoral Determination makes overtime work contingent on the employer concluding an agreement with the farm worker.  Section 14 stipulates how overtime work must be paid.  Failure to comply with overtime regulations violates workers’ constitutional right to “fair labor practices.”

A 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 (US52¢) per hour.¹⁴⁸  Besides not paying the minimum hourly rate for farm workers (R4.54 or US64¢), 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 Weipe farm, a Zimbabwean permanent worker earned the monthly minimum wage but complained that he had to work overtime and did not get paid for it.¹⁴⁹

Employers’ failure to comply with provisions governing deductions from wages

Human Rights Watch found numerous violations of section 8 of the Sectoral Determination that governs employer deductions from farm workers’ wages.   These included unlawful deductions for accommodation, electricity and other services, goods purchased at a store, life insurance, and deferred wage payments.  These deductions deprive workers of the right to “fair labor practices” that are protected in section 23 of the constitution. 

Section (8)3 of the Sectoral Determination specifies that 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. 

On a Weipe farm, we 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$7.08) per month deducted from their below minimum wages of R500 (US$71) per month.¹⁵⁰  The owner of another farm in Weipe related how the Department of Labor, 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.¹⁵¹

Section 8(2)(d) of the Sectoral Determination permits an employer to make a deduction for accommodation only if no deduction is made by the employer for electricity, water or other services.  We found deductions for electricity cards were common even when employers were also deducting money for accommodation.

Section 8(10) of the Sectoral Determination stipulates: “A deduction of any goods purchased by the employee must specify the nature and quantity of the goods and the amount that correlates with a proof of purchase.” The Zimbabwean who works in a farm store just off the Tshipise road complained that he was not allowed to obtain a record of store purchases for which the farmer made deductions from his pay.  “He deducts what I get from the store.  He gives no proof.  He writes down in a book what you take.  You’re not allowed to see that book.”¹⁵²  

Farm workers to whom Human Rights Watch spoke on a Weipe farm said the owner was making a compulsory 10 percent deduction each month from workers’ wages, which he then paid them back at the end of the year.  The employer does not have the right to make a compulsory deduction for savings.  Moreover, the employer is required by section 75 of the Basic Conditions of Employment Act to pay interest “on any amount due and payable in terms of the Prescribed Rate of Interest Act, 1975, to any person to whom a payment should have been made.”

Deductions for workers’ life insurance are permitted, under section 8(7)(a), only if the employers receive the farm workers’ written request, as stipulated in section 8(1)(c) of the Sectoral Determination.  A Vivo farm owner told us that Zimbabweans have been specifically excluded from any private life or funeral insurance for the past two or three years, so in November 2005, after losing four of his 21 permanent workers to AIDS during the year, he made contributions to a life and funeral insurance scheme compulsory for the mainly South African workers on his farm. “The tradition is that the next of kin will come and ask you, as the employer for many years, what can you do for him.  You are only their father when it suits them.”¹⁵³ 

Discrimination and violence against Zimbabwean workers by South Africans in the private sector

The preamble to the Immigration Amendment Act refers to the need to educate civil society about the rights of foreigners and refugees.   The Employment Equity Act, 1998, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, reinforce the prohibition against unfair discrimination on a number of specific grounds provided for in section 9 of the constitution.¹⁵⁴  Discrimination on the basis of national origin is not explicitly prohibited in section 9 of the constitution or in the above-mentioned legislation, but such discrimination, unless properly justified in terms of other provisions in the constitution,¹⁵⁵ would be antithetical to the constitutional right to equality in section 9. Section 12 of the constitution grants “everyone” the right to freedom and security of person, which includes the right “to be free from all forms of violence from either public or private sources.”  “Fair labor practices,” a constitutional right under section 23, would include the protection of workers (including documented migrant workers) from workplace discrimination.  Under the ILO Convention Concerning Migration for Employment that South Africa has ratified, treating migrants less favorably than nationals in remuneration, hours of work, and overtime arrangements (among other things) is prohibited.¹⁵⁶ Yet Human Rights Watch documented cases in which Zimbabwean migrants alleged workplace violence and discriminatory treatment by other workers, private security officials, and employers.

A farm in Doreen, near Tshipise, has a labor force that is 10 percent Zimbabwean and 90 percent South African.  All the foremen are South African.  Human Rights Watch spoke to four Zimbabwean workers who complained of discrimination by the South African foreman against Zimbabweans.  One said:

We were told by these four workers that Zimbabweans on the farm in Doreen had engaged in an illegal strike in 2001 over being made to do more demanding work than their South African co-workers.

Many undocumented migrants to whom Human Rights Watch spoke either at police stations where they were detained and awaiting deportation or on the road returning to Johannesburg or Pretoria said they had jobs in the construction sector and that they were paid substantially less than South African workers.  

Three Zimbabwean men whom we 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 Murambatzvina,¹⁵⁸ 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.”¹⁵⁹

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 p.m., 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 p.m. 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.¹⁶⁰ 

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.¹⁶¹    

Housing and living conditions

In the apartheid era, white commercial farmers received state subsidies to build workers’ housing.  Since that time, provisions in the Sectoral Determination for farm workers have discouraged employers from building worker housing.  Farmers told Human Rights Watch that in the Sectoral Determination the prevailing maximum deduction allowed for accommodation—10 percent of a worker’s wages if an individual worker occupies the house and a lower percentage deduction for each worker when a house is shared—and the high prescribed standards (see above) give them no incentive to provide housing for farm workers.¹⁶² 

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 directed the government to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing.¹⁶³  The Constitutional Court acknowledged that housing entitlements in South Africa would be highly dependent upon context given the diverse variety of housing needs in the country.  Accordingly, the Court interpreted the 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.¹⁶⁴  It is therefore the state’s obligation to create the conditions for access to adequate housing at all economic levels and to devise policies to address diverse groups with different needs.  Although the Constitutional Court has suggested that a wide range of possible measures could potentially be adopted by the state to meet housing obligations, present barriers to housing rights in farm communities, created in part by legal disincentives, mark a departure from the path of progressive realization envisioned by the Court.

Read together with the Court’s later interpretation of the meaning of “everyone” in subsequent cases concerning the expansion of rights to migrants, the government must proffer a reasonable justification for denying the constitutional right to adequate housing to non-citizens.¹⁶⁵  While the extent of obligation is unclear under current constitutional jurisprudence, it does appear that some obligation exists and must be further developed.  The right of access to adequate housing cannot be seen in isolation from other absolute rights.  

The Department of Housing has three different subsidy mechanisms that could be utilized for farm workers’ housing, but it approaches the provision of farm workers’ housing with caution, implying that the farm owner is responsible for providing housing.¹⁶⁶  In 2002, the Department of Housing informed the South African Human Rights Commission that it intended to develop a strategy specifically for farm workers’ housing in 2003.  Human Rights Watch found no evidence of such a strategy.¹⁶⁷  The government’s failure to create a housing policy puts it at risk of contravening its constitutional obligation to establish measures for the progressive realization of the provision of adequate housing for everyone.

We are both from Harare.  We grew up together.  We are both 26 years old.  We were supposed to do “A” levels but had no finance.  We traveled together to South Africa.  It is our first time in South Africa.  We came at the beginning of the month.  We crossed the river together.  We do not have permits.  We were also on Mr. [name provided] farm [in Doreen].  We got diarrhea and were beaten by [name provided] the South African foremen.  We were staying on the farm three days.  We were also staying in the compound until expelled.  The compound was not good.  We were sharing a room—ten in the same room.  No bed, no mattress, no nothing; just a floor and a roof.  We were drinking water from the canal, and using the same water for washing and bathing.  No toilets, no electricity—just the bush.  There are permanent workers—all South Africans, about 50 of them.  They live better.  Their houses are better.  Most Zimbabweans are living in a single big room.  South Africans have their own personal rooms and water taps, but no toilets or electricity.  Food is given.  We were given sadza [a thick porridge made from maize meal].  The relish—we don’t understand what it was.  We got diarrhea, which led to our expulsion.  We are hoping to get to Pretoria and find something better there in construction or gardening.  Some of the guys at the farm claim to have been in Pretoria.  They got deported.  So they are only at [name of farm provided] on their way back to Pretoria. 

—Human Rights Watch interview with two undocumented Zimbabweans, Mopane train station, April 23, 2006

The black small-scale commercial farmer near Tshipise whom we interviewed acknowledged the poor housing and living conditions of his two South African workers:  “I built the houses.  It’s not good.  Just mkhukhu [a Zulu word for an informal dwelling].”¹⁶⁸  There were no toilets and the only available water was from the river. 

Human Rights Watch visited a black farmer who had a 15-hectare plot on a 100 hectare farm in the former Venda homeland.  The accommodation for the nine Zimbabwean farm workers was atrocious; the accommodation for the farmer was only marginally better. Eight of the nine workers shared a small room; the oldest, a 52-year-old, had his own room.  The cardboard walls were wet and crumbling, the roof was of corrugated sheeting, and the window openings were filled in with scrap paper.  The workers were destitute: they had no blankets and kept themselves warm at night with a fire in the room.  According to the farmer, the workers used his toilet when he was absent.  The farmer continued: “There was one common one.  It’s not in good condition.  Even people passing by, they were using it.  You can’t get in.  It’s terrible.”¹⁶⁹  Of all the Zimbabweans to whom Human Rights Watch talked during the research for this report, these were the only people who, when asked if their situation was better or worse than in Zimbabwe, uniformly responded, “Ah, this is worse.”¹⁷⁰

The four Zimbabwean workers to whom we spoke on a Doreen farm—a seasonal worker who had worked on the farm since 2005 and three permanent workers who had worked on the farm for five, seven, and ten years, respectively—were all getting paid the minimum wage.  They had no deductions taken from their wages, and they had substantial savings, yet they complained about their living conditions.  There were no toilets, they used stream water, and they lived in mud and stone houses that they had built themselves.¹⁷¹  

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.  Zimbabwean migrants receive medical assistance under this law but are unable to obtain compensation for work-related injuries. 

A Zimbabwean worker, who got injured on the job on a Weipe farm in 2004, 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.¹⁷² 

Human Rights Watch spoke to this man’s employer, a farm owner, who explained that workers do not receive compensation because they are not allowed to open bank accounts into which compensation settlements are paid:  “I had a case where we had a very big accident with a Zimbabwean.  All his medical costs were paid.  He got covered for the month he could not work. He was sent a check.  He couldn’t cash it because he didn’t have a bank account.  We cashed the check and gave him the money.”¹⁷³  Another farmer attributed the problem with workers’ compensation for Zimbabwean migrants to the requirement that workers produce a South African ID.  “If you can’t produce a South African identification document, there’s a presumption of illegality.”¹⁷⁴  

The problem of opening a bank account and the need to produce a South African ID, both cited by farmers as obstacles that prevent foreign workers from being able to receive compensation, are two interlinked issues, as previously discussed.   To open an account, one must produce a South African identity document.  The claim of a labor consultant to have arranged with the Bank of Athens for Zimbabwean migrants to be able to open accounts, if correct, raises questions about why Zimbabwean workers are not routinely allowed to open accounts.¹⁷⁵ 

Employer deductions for emergency travel documents (ETDs)

Farmers who use lawyers or labor consultants to ensure their compliance with the corporate permit provisions in the Immigration Act deduct a share of their legal expenses from workers’ wages.  A lawyer whose business includes ensuring farmers’ compliance with the corporate permit provisions justified the deduction in terms of section 8(1)(d) of the Sectoral Determination that permits the employer to deduct at most 10 percent of the worker’s wage towards the repayment of any amount loaned or advanced to the farm worker by the employer.  

The Immigration Act should protect workers from corporate permit holders making deductions from workers’ wages to pay a fee for compliance with the corporate permit provisions.  An amendment might be modeled on the Unemployment Insurance Contributions Act, 2002 (No.4 of 2002), section 7(3)(b) of which states that the employer may not seek or receive a fee from the employee for complying with the Act.  Similarly, section 64(1) of the Compensation for Occupational Injuries and Diseases Act makes it an offense for any employer to deduct from the earnings of an employee any amount or receive any amount from the employee to compensate the employer directly or indirectly for any amount which the employer is liable to pay in terms of the Act.  

A Zimbabwean worker on a Weipe farm told Human Rights Watch that the farm owner had deducted R102 (US$14.45) from his wages for the ETD that Zimbabwean officials issued to his boss.¹⁷⁶  The worker remarked: “In Tshipise, the workers are not paying R 102 for travel documents.”  The lawyer who helps farmers to comply with the corporate permit provisions told Human Rights Watch: “The farmer deducts the ETD from the workers’ salary.  I charge the farmers R50 to R100 (US$7-14) per worker for a new ETD application.  The precise amount will depend on the numbers of workers.”¹⁷⁷  The lawyer said that he had heard of a company in Johannesburg that charges R5,000 (US$708) to get an ETD for a worker, and the employer deducts the costs from the worker’s salary.  He expressed satisfaction with the service he was providing not only to farmers but also Zimbabwean migrants. “Those recruited don’t even have that Z$100,000 [roughly US$1.00] to pay for the ETD.  You can also say we are financing the worker.  We’re offering an inexpensive service.”