Workers chased away from their jobs at Desai’s Bakery in Gqeberha, Eastern Cape, say they endured years of verbal, xenophobic and racist abuse from their employer. They feel they have no protection and no way to safeguard their rights.
When the workers asked their employer to increase their wages, which were below the legal minimum, they say they were threatened and sent away.
One of the employees, Fungai Chawasarira, 33, says he worked without a break for 12 hours a day preparing baked goods. “The employer would say to us, ‘You are monkeys. You are assholes. You eat grass in Zimbabwe and Malawi. Your parents cannot even buy machines.’”
Chawasarira worked at Zahid Desai’s bakery with 15 colleagues. Some had been there for as long as 17 years. They say they were paid between R13 and R15 an hour – well below the minimum wage of R21.69 an hour. All but one of the group was born in Zimbabwe or Malawi.
“Once I cut my finger with the bread [slicer]. But all the employer was concerned about was the machinery, not my injury. I bled in the taxi trying to get to Livingstone Hospital,” says Gumie Mukondiwe, 33, who is from Zimbabwe.
The workers’ payslips were handwritten on brown envelopes, which held their wages in cash. They received no sick leave and were not registered with the Unemployment Insurance Fund.
The group of 16 workers asked Desai to pay them the minimum wage in January 2020. “But our request for an increase made his brother chase us away, as you hear on the audio,” says Chawasarira, who plays an audio file stored on his phone. In it, someone says, “You want to speak to me? I don’t speak to animals! I am not a fucking animal. Go to the fucking bush! You can be like an animal there! You can’t be like an animal here! You are ungrateful rubbishes [sic]. You will never come here and intimidate me! Take your fucken bush maniere [manners] to the bush. I have no time for you. You are ungrateful! This is South Africa, not Zimbabwe! This is not Malawi! You want fire? I’ll give you fire. Fuck off from here, man!”
Chawasarira says that in response the workers went outside, where “men with guns started to threaten us”. They decided to leave and went straight to the Commission for Conciliation, Mediation and Arbitration (CCMA) to report a case of unfair dismissal.
Blocked at every turn
The workers never went back to work. No agreement could be reached between them and their employer at a CCMA conciliation meeting on 17 February 2020, so they filed for arbitration. This was delayed by the Covid-19 pandemic and only took place seven months later, on 29 September.
Before this, in August, the workers approached the EFF for help, but it said the CCMA would not allow the party to represent workers and recommended a meeting with the employer. The workers and four EFF provincial leaders went to the bakery to ask for a meeting on 22 August. But they were beaten up, allegedly by the bakery’s private security guards.
“One of the workers from Zimbabwe was beaten to the point of unconsciousness and had to be hospitalised. Desai uttered racist remarks, saying: ‘I have been wiping the arses of Blacks for over 30 years,’” says EFF Gqeberha regional leader Khanya Ngqisha, who was also assaulted.
The group laid charges, but nothing came of them. Gqeberha police spokesperson Priscilla Naidu says a case of assault with intent to cause grievous bodily harm was investigated but the National Prosecuting Authority (NPA) declined to prosecute on 1 October 2020.
NPA provincial spokesperson Anelisa Ngcakani says the case was not prosecuted because the police docket said the complainant refused to identify the suspects and so there was no prospect of a successful prosecution.
But Chawasarira says this is not true and that the police failed to arrest the attackers and also never arranged an identification parade. Naidu did not respond when asked about this.
The group of workers then joined a tiny union, the Democratised Transport, Logistics and Allied Workers’ Union, paying a membership fee of R65 each. They hoped the union would help represent them at the arbitration hearing, but the union organiser did not show up and the workers were left to represent themselves.
“Since we didn’t have a representative and they had a lawyer, it was very hard for us. We didn’t know all the CCMA rules. There were masked guards from the bakery outside – these scary people where you only see the eyes. The employer’s security guard came inside armed with a gun. Some of us [panicked]. The employer denied everything and said we had threatened to burn the bakery, which was a lie,” Chawasarira says.
A CCMA official told them to take a settlement of R1 500 each or lose the case. “We refused. It worried us because it seemed the CCMA had already decided that we would lose,” he says.
During the arbitration, Chawasarira says, the commissioner disregarded their payslips, would not admit into evidence the audio recording and instead accepted Desai’s assertion that he had always paid them the minimum wage, even though he had no proof of this.
Desai says the workers’ allegations are “false accusations against the company”. “This case was heard at the CCMA and was concluded at the CCMA. That’s where it ended one and a half years ago.” He would not comment when asked if it was his brother’s voice on the audio recording.
The workers have been unemployed since they were told to leave the bakery and feel they have nowhere to turn. They laid a formal complaint at the CCMA several months ago but never received a response.
The Casual Workers Advice Office (CWAO) points out that sections 115 and 149 of the Labour Relations Act give the CCMA the power to help workers obtain legal advice, help or representation. “The fact that it rarely does so is an institutional failure,” says CWAO spokesperson Lynford Dor.
“A case such as this, no matter its legal merits, where workers are treated so inhumanely and yet cannot access justice through an institution like the CCMA is reflective of a failed legislative and institutional framework that governs post-apartheid labour relations,” Dor says.
The latest Quarterly Labour Force Survey indicates that 67% of workers are not unionised. “A majority cannot afford any legal advice, and workers will inevitably take up disputes at the CCMA on the basis of their experience of an act of injustice and potentially a general knowledge of their rights, but not on the basis of a deep knowledge of the legal requirements to win a particular case,” says Dor.
The CCMA took more than six weeks to reply to questions. CCMA director Cameron Morajane denies that Desai’s guards brought guns into the arbitration.
“The CCMA and our hearing rooms are weapon-free zones. Our security service providers would record any incidents in relation to the above … No incidents were reported by the service provider. The commissioner also confirms that to her knowledge there were no persons in the hearing room with firearms nor [were] any concerns in relation to [this] brought to her attention.”
Morajane says the workers brought a claim for unfair dismissal, but the CCMA had no jurisdiction to arbitrate the dispute because the employees had not been fired, only called to disciplinary hearings by their employer.
“Considering the finding that the CCMA had no jurisdiction, the commissioner could not determine any claims for statutory payments,” says Morajane, who adds that if the workers have since been dismissed, they can refer a case and they can also still make a case for not being paid the minimum wage.
Morajane concedes that the CCMA advised the workers to accept a settlement because their “prospects of success appeared to be slim considering that the matter was prematurely referred at that stage”.
Morajane says there is not a record of the formal complaint the group laid at the CCMA several months ago.
Today, all 16 workers are destitute. “I am supporting my parents, seven siblings and my two children in Malawi and without work I can’t send them anything,” says Malik Austin, 31, whose job at Desai’s Bakery was his first.
“Life is not easy on us in any way,” says Chawasarira. “Gift of the Givers [helps] with food and other stuff.”