No, Julius, you’re not the labour police

It’s not OK for political parties to perform inspections on restaurants.

This was the line drawn by the department of employment and labour on Wednesday after EFF leader Julius Malema visited restaurants in Mall of Africa in Midrand, Gauteng, to check if the ratio between South Africans and foreign nationals was balanced.

According to the party, the visits were meant to check “labour policies, staff complement and ensure that our fellow Africans are not exploited and locals are employed at a satisfactory level”.

Malema said this was not done to confront foreign nationals but rather to challenge business owners who refuse to hire locals so they can exploit foreigners. 

“Let the enemy not distort the message. We are not fighting against fellow Africans. Those are the people we are protecting because they are being exploited. This is not about the Zimbabweans, Mozambicans or people from Lesotho. It’s about locals. Everywhere you do business, hire locals,” he said.

But is it legal? 

Labour lawyer at Farrell Inc. Attorneys Dunstan Farrell said the event was in no way legal.

“Absolutely not — it’s discriminatory, racist and xenophobic. Foreigners have rights. There are some that may be here illegally, but we need to look at why they are here. Some have fled to the country for a better life.”

Farrell said owners of these establishments don’t have much choice when visited by the party.

“What do owners do? The EFF is a law unto itself — they just pitch up and do what they like — as we have become accustomed to. They are a political party — not the police, not foreign affairs and not immigration.” 

Labour department head Thulas Nxesi came out swinging: “One cannot seek to see the enforcement of the law by breaking the law too.” 

A strongly worded statement by the department began by outlining the labour laws — a wag of the finger to those that were broken on Wednesday.

“The principle of fair labour practice is a fundamental right that is enshrined and guaranteed in the constitution, which is the supreme law of the land.”

The statement said the Labour Relations Act of 1995 and the Basic Conditions of Employment Act of 1997 give effect to the principle of fair labour practice and prescribe recourse for employees who feel their rights have been trampled upon.

“The premise of our legislation is predicated upon protecting all employees despite their nationality as long as employment relationship can be identified. The same rights accorded to a SA employee, such rights apply to foreign national employees.

“That means [foreigners] are entitled to conditions of employment and prescribed minimum wage.”

Nxesi emphasised that the right to enforce compliance with the legislation resides with the department. In the case of a bargaining council collective agreement, the bargaining council has the right to enforce that agreement’s conditions.

“We prevail upon any organisation or political party that feels or comes across non-compliance with the labour laws to raise such matter with the department ... or bargaining council ... We intercede with such an organisation to act cautiously and within the ambit of the law. One cannot seek to see the enforcement of the law by breaking the law too.

“Any violence in seeking to identify areas of non-compliance with the law is counterproductive to the principle of labour market stability and labour peace, which are highly coveted in attracting foreign investment that is so badly needed to fight the unemployment, inequalities and poverty that bedevil our labour market.

“I, therefore, intercede with anyone or organisation that intends to identify areas of non-compliance with our labour laws to act cautiously and show character by desisting from violence and intimidation,” Nxesi said.

He added that the government was dealing with regulations for the employment of foreign workers.

Meanwhile, DA shadow minister of employment and labour Michael Cardo said Wednesday’s event was just the EFF’s “desperate exercise in xenophobic, political grandstanding masquerading as legislative oversight”. 

“The idea that Malema has the authority to impose himself on a private employer — armed like an apartheid-era labour inspector with a clipboard and a kit to conduct a kind of pencil test — is both laughable and dangerous.”

The idea that Malema has the authority to impose himself on a private employer — armed like an apartheid-era labour inspector with a clipboard and a kit to conduct a kind of pencil test — is both laughable and dangerous.

—  DA shadow minister of employment and labour Michael Cardo

Amnesty International SA also weighed in, saying high-ranking public officials and political leaders must stop blaming high unemployment and SA’s poor economic status on foreign nationals, refugees and asylum seekers, as it had the potential to reignite xenophobia in the country.

Executive director of Amnesty Shenilla Mohamed said it was easy to blame foreign nationals. “But ... an economy like SA cannot rely on local skills alone to grow and create jobs. Evidence shows that some of the biggest and industrialised economies around the world have grown because they have absorbed the foreigner workforce and skills.

“Blaming foreign nationals for the country’s unemployment problem will only fan the xenophobic flames against this vulnerable group, because they are always used as scapegoats for various problems facing the country.”

This is the latest in many vocal ploys the EFF has conducted as it looks toward the 2024 elections. 

With a high youth unemployment rate of 66.5%, South Africans are increasingly blaming the scarcity of work on the employment of foreign nationals.