Down on the farm and barefoot in the kitchen: farm labour and domestic labour as forms of servitude

Abstract

This article evaluates the claim that working conditions for farm workers and domestic workers in South Africa can be analysed in terms of the constitutional prohibition against servitude. Recent research and statistics suggest that for most of these workers the conditions fit the accepted definition of servitude. Although a finding that the constitutional right to be free from servitude has been violated is not a straightforward matter, the existing research provides the empirical and legal predicates for such a finding. The appropriate remedy for violations of the 1996 Constitution's prohibition against servitude is the creation, by the state, of a comprehensive and coordinated programme designed to realise the manumission of these workers. The use of law as a tool for social transformation has inherent limits. At a minimum, however, a legal finding of such a constitutional infraction obliges the state to employ all available means at its disposal to restore the dignity of these workers.

¹Respectively, Senior Lecturer, School of Law, University of Pretoria, Research Associate, Centre for Human Rights, University of Pretoria, Research Associate, SAIFAC (South African Institute For Advanced Constitutional, Human Rights, Public and International Law), and Editor-in-Chief, Constitutional Law of South Africa; and Research Associate, Centre for Human Rights, University of Pretoria, and Clerk, Chief Justice Pius Langa, Constitutional Court of South Africa.

No one may be subjected to slavery, servitude or forced labour. (Constitution of the Republic of South Africa, Section 13)

Notes

¹Respectively, Senior Lecturer, School of Law, University of Pretoria, Research Associate, Centre for Human Rights, University of Pretoria, Research Associate, SAIFAC (South African Institute For Advanced Constitutional, Human Rights, Public and International Law), and Editor-in-Chief, Constitutional Law of South Africa; and Research Associate, Centre for Human Rights, University of Pretoria, and Clerk, Chief Justice Pius Langa, Constitutional Court of South Africa.

¹In this paper we refer to both the Final Constitution of the Republic of South Africa Act 108 of 1996 (FC) and the Interim Constitution of the Republic of South Africa Act 200 of 1993 (IC).

²Debt bondage or bonded labour occurs when a person works for a ‘lender/owner’ in conditions of servitude to pay off a debt, which may often have been incurred by another. The debt is rarely paid off because of the high interest rates charged. Debt bondage often looks like slavery because the debt becomes permanent and is often passed down to the next generation.

³But see Asher, 1994: 252. Asher criticises the Kozminski definition for falling short of international definitions of servitude and argues for a more expansive one. See also Bailey v Alabama, 1911: 243 (the Thirteenth Amendment protects the inalienability of an individual's right to his or her labour and forbids the state to enforce laws that directly or indirectly result in compulsory service); United States v Reynolds, 1914 (the US Supreme Court found that a statute's constant threat of arrest and imprisonment for failure to pay a third party debt timeously turned the obligation to work into compulsory or forced labour designed to satisfy a debt and thus was a violation of the prohibition against servitude); Page, 1989; and Goluboff, 2001.

⁴The Extension of Security of Tenure Act 62 of 1997 and the Land Tenure Rights Act 112 of 1991.