Hundreds of Eastern Cape auto workers are still fighting for compensation almost 20 years after Volkswagen South Africa (VWSA) fired them for holding an unprotected strike.
The dismissed workers turned to the Economic Freedom Fighters (EFF) for support and began holding weekly protests outside Volkswagen’s headquarters in Uitenhage in August. They wanted to meet with management executives, asked that payroll records be released and were demanding compensation.
Volkswagen secured an interim interdict against more than 100 of its former workers and the EFF in October. This barred the group from interfering with production, preventing access to the factory or being within 500m of the Volkswagen manufacturing plant and Uitenhage dealership. Neither the former workers nor the party contested the interdict as they had no legal representation.
In January 2000, the National Union of Metalworkers of South Africa (Numsa) suspended 13 shop stewards at Volkswagen after they criticised an export agreement Numsa had signed with the company. More than 1 300 workers downed tools in support of the suspended stewards, striking for two weeks. Volkswagen dismissed the entire group on 3 February 2000.
The dismissed workers and their shop stewards took their case to the Commission for Conciliation, Mediation and Arbitration (CCMA), which reinstated them. “We were supposed to go back in February 2001. But we got a message that the army and police were there and we would be mowed down, so we didn’t,” says dismissed workers committee member Dominic Cyster, 58. The committee was established by the workers.
Volkswagen then took the CCMA decision on review to the Labour Court, which overturned the CCMA’s reinstatement. The workers hired lawyer Jay Surju to take the case further, but lost in the Labour Appeal Court and then the Constitutional Court. They asked the United Nations’ International Labour Organisation to intervene, but it refused to do so.
By 2006, the workers had decided to sue Numsa for failing to represent them when they were dismissed. However, the committee that represents the dismissed workers today says it was not given any clear information about the outcome of the case.
It now wants to know if an out-of-court settlement was reached. “Surju kept all the information away from us. Some workers were told by Surju that we won the case and they must sign for him to invest their money. When we asked about this, Surju told us to keep quiet. We want closure and the whole package of information must be availed to us,” says dismissed workers committee member Kiewiet Stuurman, 64.
They also want answers to other questions. “Some of the workers were on genuine sick leave and not on strike in 2000, but they were still dismissed. VWSA said this was a mistake, but then only rehired some of those who were sick at the time. We never received answers when we asked why some sick people were rehired and others were not,” says dismissed workers committee member Vuyisile Kula, 60.
The dismissals were devastating, says Cyster. “Many of our people died, some of our comrades are blind from diabetic illness, others could not take it and they got strokes. Others were evicted from their homes. As law-abiding citizens, as voters, we want people to know we were ill-treated”.
Many of the dismissed workers have not had permanent work since they were fired in 2000.
An EFF activist who asked for anonymity, fearing retaliation from Volkswagen, said, “These workers are now elderly and their financial status is in a shambles. Some committed suicide because their dignity was taken away from them. It is morally incorrect for any company to dismiss such a large number of workers. It shows arrogance on Volkswagen’s part. Even if the workers were wrong, the employer should have found an amicable solution”.
EFF attorney Norman Montjane has taken on the case. He says Surju initially refused to hand over the case files. “It was only when we asked the Law Society to compel Surju to provide his files that he agreed to pass them on. Unfortunately, Surju died before giving us those files,” he says. Surju died of natural causes in January 2019.
Montjane then asked the Legal Practice Council to appoint a curator. The curator confirmed that they have Surju’s files. Montjane was promised the files on 9 November, but received only one document – an outstanding bill for more than R24 000 that the workers apparently owe Surju’s estate. Montjane is still pursuing legal papers relating to the lawsuit.
Two legal advocacy organisations have criticised Volkswagen for taking out an interdict against the dismissed workers and the EFF for protesting.
Thami Nkosi of the Right2Know campaign says “poor and working-class communities cannot access justice because they cannot afford big-shot lawyers to fight these interdict applications. And what is the chance of someone with no legal experience representing themselves against an advocate of immense experience who is being paid big money?”
He says it is “very worrying” that activists were dissuaded from contesting interdict applications because of the threat of tens of thousands of rands in legal costs being awarded against them. “That is the intimidation that is constantly used,” says Nkosi.
Space for dissent
Attorney Stanley Malematja and project co-ordinator Busisiwe Zasekhaya of the Right to Protest project, which is based at the University of the Witwatersrand’s Centre for Applied Legal Studies, also lambasted the interim interdict, saying “protests are disruptive in their nature and the Constitution protects such protests”.
A protest should only lose the protection offered by the Constitution if it is unjust and protesters are armed, they said. “It has become a culture that interim interdicts are used to shrink the space for dissent. Corporates would do anything to ensure that profits are not interfered with and an interim interdict is one of the easily obtainable prohibitory orders to temporarily stop protests from tampering with the day-to-day running of the business,” said Malematja and Zasekhaya.
Volkswagen spokesperson Andile Dlamini said, “No workers on sick leave were initially dismissed and reinstated. VWSA issued an ultimatum for employees to return to work by a certain date and those who did not return were dismissed.
“An invitation was issued to all employees that if any employee may have a specific reason why they did not return on the ultimatum date, they must report to VWSA on a certain date to offer an explanation, which will be evaluated by the company. A number of employees did report to VWSA and those whose explanation was plausible and could be proved were taken back.
“There is no money or compensation due to the affected persons as a consequence of their dismissal by Volkswagen. This was established and confirmed by the different courts where this case was heard.”
He added that “the court interdict was obtained to prevent the EFF from interfering with Volkswagen’s business operations with its protests. The group is free to exercise its right to protest as long as it doesn’t interfere with Volkswagen’s business operations.”
Numsa said it had no comment.