The Con

Daniel Sambo, 47, lives in a farm cottage outside Robertson but works as a gardener in town. Jacaranda flowers carpet the streets purple in summer. When they encroach on an employer’s property he sweeps them up. He wears blue overalls and a Nike beanie and has a scar across the bridge of his nose, which set crooked the last time it was broken. Another scar, an embossed ridge of keloid tissue, protrudes above his left eye. He weighs less than 60 kg and can rest his chin on the roof of a parked car without crouching. He earns R130 a day now, R60 more than he earned before he got fired but R20 short of the wage he went on strike for. The new job is easy and he gets left alone most of the time, which is relaxing, he says. But he’d like to work on the farm again: it’s what he knows best and it’d feel more secure – if only it paid him enough.

Sambo is one of 11 labourers dismissed from Steytler Boerdery, a wine and export fruit farm in the Breede River Valley, for participating in a series of unprotected strikes between November 2012 and January 2013, when farm workers in the Western Cape began protesting for a minimum wage of R150 a day. Their union, CSAAWU (the Commercial, Stevedoring, Agriculture and Allied Workers Union), took the dispute to the Labour Court but lost on procedural grounds, landing up with a cost order it cannot afford to pay.

The union will fold unless it raises R600 000 – a figure that includes a cost order from a second, separate case – and the dismissed workers could face eviction from their homes unless they reach an agreement with their former employer.

“I don’t want to leave the farm,” Sambo said when I met him last week. “I’ve lived there for 16 years. Where would my family go?”

He was on lunch outside a recently renovated house he was helping tidy. Another man was varnishing a wooden door. Sambo spoke softly, listing concerns familiar to farm workers across the province:

“We were living hand-to-mouth.”

“The work is tiring; you’re exhausted at the end of the day.”

“I’m in debt and can’t possibly pay it back.”

“All we want is a living wage.”

On 27 August 2012, some 300 workers went on strike at Keurboschkloof Farm near De Doorns, an hour’s drive from Robertson. By October the strike had spread to two other farms in the area, taking the number of striking workers to more than 800. In November the protests turned violent, making national headlines. By the end of the month, farms in 16 Western Cape towns had been affected by the unrest.

Sambo and his fellow workers joined the strike on 13 November 2012, triggering a series of events that would ultimately cost them their jobs and place one of the most important unions in the region at risk.

“I started as a gardener last month,” Sambo told me. “For two years my wife and oldest son were the breadwinners.”

We spoke until lunch was over and he excused himself to return to work.

In the past decade, Human Rights Watch, the South African Human Rights Commission and land rights NGO Nkuzi Development Association have published extensive reports documenting human rights abuses on South African farms (Human Rights Watch focused solely on the Western Cape). These studies have highlighted the low wages, poor security of tenure and lack of justice experienced by thousands of workers in the agricultural sector.

Illegal evictions have hung over many farm labourers living on the land they work since apartheid. According to Nkuzi Development Association, less than 1% of more than a million farm evictions between 1984 and 2004 were lawful.

“Millions of consumers around the world enjoy the fruit and wine that come from South Africa’s farms,” Human Rights Watch wrote. “But the workers who help produce these goods are among the most vulnerable people in South Africa.”

Historically, South African farm workers were exploited under laws that afforded minimal rights to black workers. These laws were repealed after apartheid and replaced with policies that aimed to bring redress to the agricultural sector. A 1994 land reform programme promised to transfer 30% of white-owned farmland to black farmers by 1999, a target that is yet to be met. The Extension of Security of Tenure Act (ESTA), passed in 1997, forbade farmers from evicting tenants without first obtaining a court order. In 2003, the department of labour introduced minimum wage laws to the sector for the first time. Yet farm workers remain socially and economically marginalised, and, as a consequence of centuries of legislated racial discrimination – notwithstanding two decades of ‘freedom’ and democracy – almost entirely black.

The rallying cry of the 2012 strikes became “R150 a day”, the amount workers demanded as a new minimum wage, representing an increase of more than 100% from the existing daily minimum of R69. Farmers, represented by organisations such as AgriSA, rejected this figure as unrealistic, arguing that their position within the globalised food economy, which is dominated by well-subsidised producer regions such as the United States, Brazil and the EU, prevented them from paying higher wages.

“This will lead to major structural adjustment,” AgriSA executive director Hans van der Merwe warned after government announced a new minimum wage of R105 – 70% less than the striking workers had asked for – in February 2013. “Tough decisions will have to be made on each farm.”

Farm worker unions, however, remained adamant that their members deserved a better deal. “Cosatu welcomes this agreement, but it is not enough,” said Tony Ehrenreich, the labour federation’s Western Cape secretary, calling for increased transformation of the agriculture sector as a whole.

A key feature of the strike, as commented on by journalists journalists Benjamin FogelRebecca DavisDaneel Knoetze and others, was the speed with which an “organic” workers struggle became co-opted by political opportunists, who were accused of channelling legitimate anger on farms to further their own agendas. According to these accounts, CSAAWU – a small, unaffiliated union with strongest support in the Robertson area – emerged as a less problematic alternative, mobilising workers and providing financial and logistical support without directing protest action from above.

Ronald Wesso, a researcher at the Surplus People’s Project, a land rights NGO in Cape Town, said CSAAWU had played a “very important role” in the strike. “They have decent representation on farms and good grassroots support.”

It would be a big setback for farm workers if the union was forced to close, he said. “I think it will give farmers a lot of confidence to suppress resistance in future,” he said. “CSAAWU must be saved, but it must be saved from its own tactical incompetence first.”

 

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On June 3 this year Judge AC Steenkamp ruled that CSAAWU had erred by bringing the dismissal of Sambo and his fellow workers before the Labour Court; that the union had not followed proper protocol; that the farm workers had displayed an “intransigent” attitude towards their employer; and that farmer David Steytler was thus entitled to receive compensation for his legal costs.

“The workers may be indigent. The union is not. Should the workers be unable to pay, the union – that has been actively involved and representing the applicants throughout – should do so,” he said.

Court documents reveal that Steytler locked his workers out on 8 January 2013 after warning them on seven separate occasions to cease with unprotected strike action. “Your wrongful behaviour comes down to nothing less than economic sabotage and I can no longer tolerate it,” he told them, recording the conversation at the behest of his lawyers. “You leave me no other choice but to exclude you.”

Later that morning, CSAAWU wrote to Steytler asking why he had fired his workers, to which he replied, correctly, that he hadn’t – he’d simply barred them from working until they agreed to desist what he termed their “wrongful, unlawful and subversive behaviour”.

CSAAWU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), an independent dispute-resolution body established in terms of the 1995 Labour Relations Act, the same day. “On the 8/01/2013 the employer terminated employees [sic] contracts with the farm without reason or informing the union,” the union stated on its referral form.

In the days that followed, Steytler delivered multiple text messages and notices to his employees, reminding them that they had been locked out, not dismissed. On January 10 he lifted the lockout and invited them to return to work. They stayed away. After issuing two final ultimatums, both of which were ignored, Steytler called a formal disciplinary hearing, which neither workers nor CSAAWU representatives attended. In their absence, a human resources practitioner recommended their dismissal. Heeding this advice, Steytler fired them on January 21.

The right to strike is enshrined in Section 23 of the South African Bill of Rights. The Labour Relations Act uses the term “protected strike” to describe a strike that complies with its provisions. The provisions require that:

1) The dispute has been referred to a council or the CCMA;

2) A certificate that a dispute remains unresolved must have been issued;

3) 30 days must have elapsed since the referral; and

4) A written notice of a strike must have been given to the employer 48 hours prior to it taking place.

A strike qualifies for protection if these provisions are met, meaning strikers cannot be dismissed or face civil legal proceedings for their actions. Participating in an unprotected strike, on the other hand, is considered fair grounds for dismissal, although employers still need to follow due process.

Had Steytler fired his workers on January 8, as CSAAWU initially alleged at the CCMA – union representatives later claimed they made an honest mistake – he would have been liable for prosecution. Legally speaking, firing them on January 21, in the manner he did, was fine.

“We ought to have returned to the CCMA when we found out that the date of dismissal we lodged was wrong,” said Thembi Luckett, media liaison at CSAAWU. “They would have sent us back to the Labour Court and then the trial could have proceeded.”

Instead, Steytler’s lawyers objected that the union had no grounds to sue Steytler for firing his workers on January 8. The judge agreed, and the case was dismissed.

“We knew it wasn’t going to be an easy case,” Luckett said. “In a way, we were arguing against the law. Yes, the workers were dismissed for going on an unprotected strike, but there is no way farm workers can go on a protected strike, because the sector has such low levels of representation. There are high levels of intimidation that prevent unionisation. The procedures in place are completely inadequate for delivering justice to farm workers.”

By awarding costs against them, the judge approached the case in a narrow, legalistic way, and delivered a “very conservative” judgement, said Luckett. “Our argument was that this was an exceptional case and needed to be treated as such.”

But Wesso disagrees.

“The entire system is unreasonable. The labour relations infrastructure doesn’t serve the interests of the working class. But if you are going to work within the system, like CSAAWU chose to do, you must anticipate that the judge is not going to be some kind of revolutionary. He’s going to make findings in terms of the law,” Wesso said.

“We argued against taking this case to court. We predicted that this would happen. It’d be more productive to stay the fuck out the system and fight from the outside, not within.”

To reach Steytler’s office you turn down a gravel road, cross a railway track – there is no boom gate but the trains are infrequent – and pass a row of pale yellow farm cottages with corrugated iron roofs. Wooden poles have been lashed together to form goalposts. The edges of the dusty football pitch are covered in straw. The road curls around a vineyard with unripe grapes clustered like pebbles on the vines, dips to the left at River House Guesthouse, which offers self-catering accommodation for up to ten people, and ascends a slope towards the farmhouse. The office is in a separate building around the back.

Steytler met me outside, a towering man with hunched shoulders and cropped black hair flecked white.

“I’ll take you through the events as they unfolded,” he said, drawing a sheaf of papers across his desk. In pencil he’d meticulously listed dates from November 2012 onwards, when protest action began on his farm. He read through them all.

“Strikes took place in areas where the Farmworkers’ Strike Coalition encouraged people, nowhere else.

“The protests were politically orchestrated. People were bused in from Cape Town. Food parcels were offered as rewards for workers who participated.

“The call for a minimum wage of R150 a day was a smokescreen: the real goal was to punish the Western Cape for voting the Democratic Alliance into power.

“A labour inspector visited my farm on November 2 [2012] and found no problems whatsoever. Eleven days later – at 8.30am, after breakfast – my workers informed me they wanted to go on strike ‘in sympathy’ with protestors in De Doorns.”

Much of the rest I’d read in the court documents already. He showed me the Dictaphone he purchased when the dispute started. “I recorded everything,” he said. He had a strong nose, large ears, frameless spectacles. His hands shook a little as he spoke. The tremors became more noticeable when he got angry.

“Only people who know absolutely nothing about fruit farming will ask a fruit farmer for a raise in December,” he said. “That’s when you’re most broke – you plant in August, spend huge amounts on chemicals, fertiliser and labour, and by the end of the year you’re at rock bottom. I told my guys I couldn’t afford it.

“In harvest season they earn more, anyway. We follow a piecework system – you get paid for what you pick. I asked them to hold off until our wage negotiations in March. They would have been better off that way.”

It was CSAAWU that fired his workers, not him, he claimed. “The union told them to stay away because they thought they could get at me in court. My employees could have returned anytime; I told them that over and over again. Now they’ve been dismissed and the union is crying that they’ve all been treated unfairly. But they brought this upon themselves – it wasn’t me.”

His office was small and tidy. Photographs of parents and grandparents who’d owned the farm before him hung from the walls. In one, a man wearing a suit beamed after being awarded the General Smuts Trophy for Best Young Wine. On the other side of the room, a cork board was covered in paper. Most were to do with business, but one had an Ayn Rand quotation inscribed beside a stylised portrait of her face.

“When you see that trading is done, not by consent, but by compulsion; when you see that in order to produce, you need to obtain permission from men who produce nothing; when you see that money is flowing to those who deal, not in goods, but in favours; when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you; when you see corruption being rewarded and honesty becoming a self-sacrifice, you may know that your society is doomed.”

Steytler said: “I’ve got sciatica from the stress of these past two years. It’s like flames running up my back.”

He hesitated beside my car before I left. “My workers are all semiliterate and they’ve been screwed around by other people,” he said, looking troubled. “They’re the real victims, you know. But I haven’t done anything wrong.”

 

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“CSAAWU gives farm workers hope and confidence,” said Luckett. We were sitting in a deserted coffee shop at the University of Cape Town. The students had already gone on holiday. Her pale, freckled face was drawn. “If the union closes, it will be devastating for farm workers. Farmers will use it against them for years.”

She said the union had been inundated with offers of support since news of the cost orders spread, however. “Organisations from Germany, Norway and Denmark have reached out to us. Friends have been messaging me on Facebook to ask where they can donate.”

At the time of writing, a new fundraising drive had raised R10 000 of its R250 000 target – phase one of a campaign to recover the costs of R600 000.

“This campaign is a marathon. Please help us by alerting your networks to our struggle,” a message on the site says.

I asked Luckett if she thought the cost orders might work to the union’s advantage by raising its profile.

“If our campaign is successful, this could be a huge boost for workers’ confidence,” she said. “It’s putting pressure on workers to defend the union, and on us to reach out and build a network of solidarity.”

The union is hoping for permission to pay off the costs over a six-month period. If this is denied, it is likely they will have to pay the full amount by the end of January. If they cannot, they will be liquidated and have their assets attached.

“We have to try,” Luckett said. “There’s no other option. None.”

In spite of being critical of CSAAWU’s approach, Wesso agreed it was important the union survived. “They might be tactically incompetent, but I’m still on their side against the farmer and against the court,” he said. “But the courts aren’t where workers will win these sorts of battles. The current labour relations system isn’t suitable for delivering justice to farm workers. You have to hit the farmer where it hurts – target his source of income directly, or make his life a misery in some way. You can bring in all the laws you like, but local power relationships still matter. Until farmers pay the cost of their actions with their own bodies, like farm workers do, they will feel free to do whatever they like. When farmers are scared of being targeted they’ll treat their workers better.”

I asked Sambo if he was angry about losing his job.

“No,” he said. “I just hope I can get it back.”

“Some people think farm workers should take stronger action against their employers,” I said. “Have you ever thought of punishing Mr Steytler for not paying you the wages you want?”

“We planted the trees and cleared new fields,” he answered. “Why should we damage something we built up? It’d be pointless to burn the farm down or whatever. We’d just be arrested. It’s better to wait and hope that things change.”

(Photographs © Kimon de Greef.)