The onus to ensure compliance with statutory requirements of the workplace rests with the employer – Department Employment and Labour’s Gauteng Provincial Chief Inspector
Department of Employment and Labour’s Gauteng Provincial Chief Inspector (PCI) Advocate Michael Msiza testified in the Johannesburg High Court yesterday that labour legislation places responsibility on the employer to ensure that all laws are complied with.
Msiza further explained that the employer extends to those that carry or advance the business of the employer.
He was giving testimony in the trial involving seven Chinese nationals allegedly accused of human trafficking and child labour – in which he said the inspector’s reports showed that the Chinese employers failed to produce any documents to prove that they complied with the labou laws of South Africa.
The PCI was testifying in trial of: Kevin Tsao Shu-Uei, Chen Hui, Qin Li, Jiaqing Zhou, Ma Biao, Dai Junying, and Zhang Zhilian. The accused are facing schedule six offenses.
Their trial follows a 12 November 2019 joint operation by the Department of Employment and Labour’s Inspection and Enforcement Services (IES) branch together with the South African Police Services (SAPS)/ Hawks Unit and the Department of Home Affairs when they busted a Chinese factory involved in the trafficking of illegal immigrants and subjecting them to forced labour.
The joint operation was carried out at the premises of a company called Beautiful City Pty Ltd located at Village Deep in Johannesburg. At the time the joint operation uncovered illegal immigrants and some were minor children who are alleged to be around the age of 15 being subjected to horror working conditions.
Msiza said following the joint blitz Beautiful City was served with a prohibition notice and the factory had to stop operations. He said Beautiful City failed to produce among others registration documents to the Unemployment Insurance Fund (UIF), the Compensation for Occupational Injuries and Diseases (COID) Act. He said the implication was that workers could not claim for UIF benefits – when retrenched, going on maternity, death benefits for beneficiaries.
He said in the case of COID the implication was that workers were not registered to be compensated in case they contracted illnesses/diseases and or die at work.
“I can confirm to this Court that to this day we have never seen any document from Beautiful City indicating their compliance to statutory obligations,” Msiza said.
Counsel for the accused Jannie Kruger accused Msiza of hearsay evidence, as he failed to provide documentary evidence of his testimony.
The PCI further testified that the employer also contravened a number of laws by not paying remuneration for overtime, paying below the National Minimum Wage, contravening workers’ dignity by using the factory as a place of dwelling. He said in terms of NMW workers at the factory were owed R6,5 million.
The accused in 2021 pleaded guilty to violation of the labour legislation. However, the trial continues on other charges.
The Chinese nationals are accused of human trafficking, contravention of Immigration Act, kidnapping, pointing a firearm, debt bondage, benefitting from the services of a victim of trafficking, conduct that facilitates trafficking, illegally assisting person(s) to remain in South Africa, and failure to comply with duties of an employer.
An Occupational Health and Safety Inspector, Doctor Nkabinde who was involved during the operation testified that on the day of the inspection Beautiful City failed to produce a Risk Assessment document. He told the Court that Beautiful City premises had no ventilation, had one door, its fire extinguishers were not services, had electrical wiring protruding from walls, and had no first aid kit.
It has since emerged in Court that nine workers were injured at the factory during its operations.
Principal Inspector Patrick Masilo testified that the compliance order served on Beautiful City on 21 November 2019 has not yet been complied with. This was in relation to an audit conducted to test compliance with Unemployment Insurance Act, the Unemployment Contributions Act and the Compensation for Occupational Injuries and Diseases Act.
Five of the accused are out on bail. The other two accused Chen Hui (number 2) and Zhang Zhilian (number 7) are now in custody for violating their bail conditions. The two tried on separate occasions to flee the country and were nabbed.
The Chinese factory is alleged to have been employing illegal Malawian and Zimbabwean nationals, including children. The factory was allegedly processing the inner cotton of blankets using recycled clothing.
Some workers employed at the factory have testified that the company’s operations were carried out behind high walls and closed steel gates with access strictly controlled. Workers were also allegedly subjected to beatings, insults and exposed to hazardous working conditions in violation of occupational health and safety Act.
The trial continues today (29 March 2023).
Enquiries:
Teboho Thejane
Cell: 082 697 0694
E-mail: Teboho.Thejane@labour.gov.za
