'Zimbabwean truck drivers based in SA with valid permits cannot be fired'

Zimbabwean truck drivers notched up a victory this week in the Durban High Court, which ruled they cannot be fired if they have a valid permit, such as the Zimbabwean Exemption Permit (ZEP).

Earlier this month, several Zimbabwean truckers approached the Durban High Court with evidence that their employment had been terminated on the grounds that they were illegal immigrants – even though they all had valid ZEP permits. Some were fired through a WhatsApp message.

The employer in this case, Image Freight Logistics, was prohibited by the court "from terminating ZEP holders' employment on the grounds that they are illegal immigrants, pending expiry of the ZEP on 30 June 2024". The ruling says the truckers who brought the application have an obligation within 10 days to prove to the Department of Home Affairs (DHA) that they have lawful ZEP permits allowing them to live and work in SA. Image Freight Logistics also has 10 days to prove that it has complied with the order.

Hanging in the balance

The fate of nearly 180 000 ZEP holders in SA was hanging in the balance following a decision by Minister of Home Affairs Aaron Motsoaledi to terminate the ZEP system, which was created more than a decade ago to regularise the status of illegal migrants from Zimbabwe who had fled the country for political or economic reasons.

The Helen Suzman Foundation earlier this year won a Pretoria High Court case against the DHA when it was declared all ZEP permits were valid until June 2024 – a year longer than the June 2023 deadline sought by the DHA. The court referred the matter back to the department for reconsideration, ruling that it must follow a fair process. In the latest case, the truckers argued in court that the "firing by WhatsApp" notices started appearing after the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) issued a notice advising companies not to employ foreign truck drivers without valid work permits over South African drivers.

The bargaining council notice reads: "Industry stakeholders have taken issue with companies that opt to employ truck drivers of foreign nationality without valid work permits over South African truck drivers. The Parties are of the firm belief that if responsible companies refrain from this illegal act and prioritize 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."

That seems to have been misread by some employers who started terminating the employment of Zimbabwean truck drivers, even though they had valid permits to work in SA.

'Rights affirmed'

Unless opposed, the interim order issued by the Durban High Court will be made final on 6 February 2024.

The respondents in the case were Image Freight Logistics, the ministers of transport, labour and home affairs, and the NBCRFLI. The applicants were 11 truck drivers and the Zimbabwean Exemption Permit Holders Association (Zepha).

"The order by the Durban High Court affirms the rights of ZEP holders in the logistics industry, which is crucial for regional trade and stability," says Advocate Simba Chitando, who represented the truckers in court.

"We call upon all employers of ZEP holders, applicable regulatory bodies, the Department of Labour, Home Affairs, and the police, to respect the rights, not just of ZEP holders, but Zimbabweans generally. Targeting Zimbabweans is inconsistent with the rule of law in a constitutional democracy."