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Legal Monitor - Issue 128
Zimbabwe Lawyers for Human Rights (ZLHR)
January 30, 2012

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Workers fight destitution

Farm workers, most of them migrant labourers, left destitute by the chaotic land reform programme are having their "inhumane and degrading treatment" under the spotlight again.

Mozambican descendent Binias Yolamu came to Zimbabwe as a young 24-year old in 1964 and has been a farm labourer since.

Three decades after the end of colonialism, Yolamu is battling to keep head above water and has had to approach the courts to intervene after being chased off the place he had called home for ages.

With nowhere else to go, having established his roots in Zimbabwe, a now elderly Yolamu is pinning hopes on the Supreme Court to end his misery. Yolamu has made an application for referral of his matter together 84 other families to the Supreme Court challenging the constitutionality of some parts of the Gazetted Land (Consequential Provisions) Act, which he says has reduced him and other farm workers in his situation to "inhuman and degrading treatment."

"The land reform process is a form of affirmative action meant to advance black economic empowerment," his lawyers argue in court papers. "It (land reform) was not envisaged to be a chief driver of leading poor farm workers into destitution by driving them off the farms from where they are employed without any form of recognition or terminal benefits to enable them to start a new life after investing their whole lives to working on a land that was subsequently gazetted.

"That, in our respectful view is not empowerment but forced destitution which could never have had been the intention of the legislature," the lawyers argued in an affidavit deposed with the Magistrates Court last week.

Yolamu came to Zimbabwe from Mozambique as a migrant worker in 1964 and is among workers from Mgutu farm in Mazowe facing charges of contravening Section 3 (2) (a) as read with Section 3 (3) of the Gazetted Land (Consequential Provisions) Act, [Chapter 20:28] "Occupation of Gazetted Land without Lawful Authority."

This follows a complaint by a new farmer Kingstone Dutiro, who wants the employees of former farm owner Archie Black to leave Mgutu farm. The State, led by Edmore Makoto, is now prosecuting the 85 workers.

The workers accuse the State of failing to protect them as enshrined in the Constitution of Zimbabwe. Yolamu and his co-accused persons say they have nowhere else to go as they cannot trace their roots to Malawi or Mozambique where they are originally from.

Yolamu has been at the farm for 48 years as a worker.

"Neither Section 16, 16A, 16B of the Constitution of Zimbabwe, nor the Gazetted Lands (Consequential Provisions), Act [Chapter 20:28], contain such a provision terminating my contract of employment by mere virtue of the farm being gazetted," Yolamu argues. "Being prosecuted in this matter for residing at a farm where I have been accommodated as a consequence of my employment thereat is an act of constructive dismissal which I must be protected against at law."

Yolamu - through lawyers - Lewis Uriri, Jeremiah Bamu and Kennedy Masiye, argues that the land reform was meant to address colonial land imbalances and not infringe on labour rights.

"These laws (Sections 16, 16A and 16B of the Constitution and the Gazetted Lands (Consequential Provisions) Act, [chapter 20:28]), deal with ownership of land which is the subject of a farming enterprise. It does not deal with the individual relationships such as employment within the farming enterprise itself. To this end, these laws do not and must never be construed as interfering in any way with our labour rights," says Yolamu The group of former farm workers says since the departure of Black they "have lived in extreme and abject poverty that has been forced on us."

The 72-year-old said: "These plot holders have made use of our services on various occasions and have failed to remunerate us for these services. This in our view could be the reason why they are now orchestrating for our prosecution in this matter. We submit that this is an abuse of court process for an employer to seek the prosecution of its employees simply because it is failing to pay such employees for services rendered."

Harare Magistrate Lazarus Murendo is expected to hear the State's opposition to the application for referral filed by the former farm workers. Prosecutor Makoto told the court that he would be opposing the application when the case resumes on Friday. Last week, Magistrate Murendo requested the public gallery to be emptied to accommodate some of the 85 accused persons while the application was being made.

"It would be unfair for the accused, some of them being elderly and mothers with babies to be standing in court," he said while appealing to court attendees to allow the accused persons to utilise the public gallery seats.

The 85 workers say they have not been paid since Black left.

"In addition to the non-payment of salaries due to us, we are no longer receiving the food rations we used to receive. We have lost access to clean drinking water as the water tanks and pipes were cut off from supplying our compounds. We no longer receive any assistance in sustaining or developing our accommodation structures. In short, we are being denied the right to a basic existence, which in our view amounts to inhuman and degrading treatment," said Yolamu, who is the first accused person in the case.

"We do not believe that this was the government's intention in embarking on the land reform exercise. We also do not believe that the government intended to push us from pillar to post in a desperate quest for a place where we and our families can lay our heads, especially when we have devoted our lives to hard work in order to follow an honest and decent existence.

"If this prosecution is allowed to proceed, these will be the results; we will be pushed out of employment unceremoniously after having served all our lives in that employment, in my case a record 48 years of continuous and loyal service, albeit with a decade of not being remunerated."

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