Zimbabwean truckers head to court to stop unlawful ‘purging’ by SA employers

Several Zimbabwean truckers rushed to the Durban High Court this week seeking an urgent interdict to stop their employer terminating their employment on the grounds that they are illegal immigrants.

The respondents in the case are the employer, Image Freight Logistics, the ministers of Transport, Labour and Home Affairs, and the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI).

The case was brought by the Zimbabwean Exemption Permit Holders Association (Zepha) and 11 truck drivers who say their employer advised them by WhatsApp notice that they were illegal immigrants without the necessary permits to work in SA – despite the fact they are all ZEP holders.

Threat of prosecution

Zepha reports that several trucking companies have started purging their staff of Zimbabwean truck drivers, most of them ZEP holders, on false allegations that they are undocumented foreign nationals.

“All ZEP holders are documented and have a lawful right to live and work in South Africa,” says a statement from Zepha.

“The South African logistics companies that are letting go of Zimbabwean truck drivers are doing so under threat of criminal prosecution for hiring illegal migrants [by] the National Bargaining Council for Road Freight and Logistics Industry (NBCRFLI).”

The Zimbabwe Exemption Permit allows about 180 000 Zimbabweans and their dependents to live, work and study in SA.

The Department of Home Affairs was challenged in court earlier this year over its decision to terminate the permit system by June 2023, which would mean ZEP holders and their dependents would either have to apply for alternative visas or risk being deported.

The court heard evidence that this had the potential to create a humanitarian crisis across the region, and that few permit holders were likely to qualify for alternative visas based on Home Affairs’ Critical Skills List.

In a case brought by the Helen Suzman Foundation earlier this year, the Pretoria High Court declared that all ZEP permits were valid until June 2024. The court also declared invalid the decision by Home Affairs to terminate existing ZEPs in June 2023, and referred the matter back to the department for reconsideration, following a fair process.

Dismissal by WhatsApp

In court papers before the Durban High Court, the truckers say they were effectively fired by WhatsApp message based on the false claim that they do not have the correct work permits for employment in the trucking sector.

“Please note that you do not have a valid work permit. Therefore you are not legal to drive (sic) a South African truck.

“Take note, that if you are currently doing a trip, it will be your last one,” reads the WhatsApp message sent by the employer on 28 October.

Bargaining council circular

This follows a circular by the industry bargaining council on 24 October calling on employers to stop hiring foreign truck drivers because it is not a scarce skill, and would help to address unemployment and curb unrest.

The circular claims many in the industry have taken issue with companies employing foreign nationals as truckers rather than South Africans.

“The Parties are of the firm belief that if responsible companies refrain from this illegal act and prioritise employing South African truck drivers as professional truck driving is unfortunately not a scarce skill, these may help address unemployment within the sector and curb unrest.”

‘No authority’

Court papers read: “The irreparable harm, when ZEP holders have lost their jobs, as threatened by the employers, is that affected ZEP holders and their dependents would be left destitute and in dire straits.

“The industry bargaining council has no authority to enforce immigration laws or to assume the powers of the police,” says Advocate Simba Chitando, who is representing Zepha in court.

“Both the police and the Department of Home Affairs are independent and operate strictly within the parameters of applicable statutes, none of which delegate the NBCRFLI with any power. The courts have made it clear that ZEP holders are not undocumented migrants and have a lawful right to live and work in South Africa.”

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