Exploited security guards call out labour department
Private security guards in George have been reporting the unfair labour practices of their employers to various government bodies for years, but they have been largely ignored.
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13 February 2020
There is a bridge across the N2 highway that divides the historic city of George in half. Among the oldest in the country, the city was settled by the Dutch East India Company in the late 18th century as a logging outpost and took its name from the then reigning British monarch, George III.
Pristine examples of Cape Dutch architecture, such as the magnificent museum at the top of York Street in the heart of town, clean streets and the immaculately manicured lawns in its leafy suburbs give a sense of tranquility, order and security. Everything seems to be in its right place.
As one drives south on Nelson Mandela Boulevard, from where it intersects with PW Botha Boulevard, the schools and suburbs slowly give way to small RDP-style council houses and industry, still orderly but less attractive, until one crosses that bridge and arrives in the township of Thembalethu. The roads become suddenly less well-maintained and overcrowded, litter and debris are strewn everywhere and livestock meander on patches of unkempt grass. It was on a patch of grass like this that New Frame met with frustrated security guards.
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The guards from several companies in George say they have been pleading with the Department of Labour for five years to protect them from employers who do not comply with labour laws.
The workers, organised by the Southern Cape Community Forum (Socacof), held a meeting in Thembalethu earlier this month to expose some of the breaches in labour law they are facing.
Socacof spokesperson Petros Mapapa says, “Non-compliance, collusion and criminality is rife and ongoing in the private security industries in the Southern Cape region, particularly in George.”
Dismissal or suspension?
Four guards employed by Bamogale Security Solutions said that the firm had fired about 16 of their colleagues recently by text message. A week before their dismissal, Bamogale had abruptly given the guards a test to write.
Noluntu Zakwe*, 36, received a text message informing her that she had failed the test and that she was therefore being dismissed.
The message read: “Kindly find your results of your assessment and your performance for the whole year with us. Assessment results failed and poor performance [sic] Bamogale enterprise like to thank you for working with us, please arrange for the return of uniform before 03 February 2020 and your paper for UIF and provident [sic] fund will be ready on the 18 February 2020 after your last payment, if any delay will cause the late payment. Sincerely regard HQ”.
“I worked there for one year. The probation was only three months in the contract. On 25 January, Bamogale told us all to write a test. Yesterday, they said I failed the test and so my performance was bad and I must get fired. This is taking away my dignity. As from last year, I was never off sick from work. I have been mistreated,” said Zakwe.
Bamogale director of finance and administration Keotshepile Tladi said that some of the guards had not been performing well, but that the text message sent to them did not constitute a dismissal.
“Officers who have had several consultations about their performance throughout the year and still score low are subsequently not renewed. The office receptionist sent them an SMS informing them of their outcome, which was not in her power to do so. However, they did not get terminated via SMS. None of the employees have been terminated, according to our records, and they remain employed. The officers are jumping the gun in anticipation of a contract termination. This will still be done according to what is allowed by the labour law,” said Tladi.
Socacof treasurer Mncedi Manyonta, 50, says that he worked for Fidelity as a security guard and was unfairly dismissed in 2018. When he went to the Commission for Conciliation, Mediation and Arbitration (CCMA), the employer said that he had not been fired.
“At the CCMA, Fidelity said they had not fired me, because they were going to still give me the date for a disciplinary hearing. Yet they had told me I was fired, they never told me to come to a disciplinary. The CCMA commissioner didn’t ask Fidelity why they had stopped paying me if I was still an employee, he just ruled that I had not been fired. It is 16 months on and I have never been called for that disciplinary hearing. Yet I can’t claim UIF because Fidelity still says I am not fired,” said Manyonta.
CCMA spokesperson Annah Mokgadinyane said Manyonta’s case of unfair dismissal was unsuccessful. “The commission found that the applicant did not prove the existence of dismissal,” she said.
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Mokgadinyane declined to comment when asked how the CCMA could have found that Manyonta was not dismissed even though he was fired, told to go home and never paid again by Fidelity.
Marius Kotze, CCMA National Head: Dispute Resolution and Enforcement would only say: “Should an employee believe that they are unfairly suspended pending a disciplinary hearing that such a matter can be referred to the CCMA as an Unfair Labour Practice – Unfair Suspension”.
However, this has to be within 90 days of the date of suspension. When asked why the CCMA did not explain to Monyanta that he appeared to have been unfairly suspended, Kotze would not say.
Fidelity did not respond to questions from New Frame.
Unaccounted for deductions
Phumlani Dlamini*, 39, has been working for the same employer for 10 years. He did not want the name of his employer published, saying he would be fired for speaking to the media. Dlamini’s payslips showed provident fund deductions of more than R15 000 over 11 years. His employer has made no contribution and has never paid Dlamini’s contribution to the Private Security Sector Provident Fund (PSSPF).
“There is no record of me at the PSSPF. I reported it to the Department of Labour that my employer does not pay my contributions to the fund. The Department of Labour sent inspectors, but I never heard back from them,” he said.
Under a sectoral determination, which establishes basic conditions of employment, by the minister of labour, all security guards are automatically members of the PSSPF and contribute 7.5% per month of their salary. This is unless their employers have been granted an exemption, in which case the employer would not deduct pension fund contributions. The fund is beneficial to guards as it offers death, disability and funeral benefits.
Socacof says this is another case where the institution established to protect security guards is not doing its work. The PSSPF website says it makes certain that employers are compliant and that the employees in the security sector are not denied their provident fund benefits. Socacof, however, says the fund has not taken action against employers who pocket workers’ provident fund contributions.
“There is nothing else I can do about my money. We cannot complain because we will be fired for that, so we just have to continue working,” said Dlamini.
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The security sector is a key employer, with 9 355 registered security companies in South Africa and more than 650 000 employees. The government has acknowledged security guards as vulnerable workers, along with domestic workers and farm workers. Their working conditions are strictly regulated. It is compulsory for security companies to pay certain allowances and Sunday pay, maternity leave, an annual bonus of one month’s salary, 21 days of consecutive leave, one shift of sick leave per month, six days of study leave a year and five days of family responsibility leave each year. All guards have to be provided with training worth 1% of their salary and R1 500 worth of uniforms, paid for by the company.
But the guards at the meeting revealed memos from security companies that breach these conditions. One memo announced that the company cap had changed from grey to blue and that workers would have R50 deducted for the new cap. Another memo informed the guards that their pay would be two weeks late. Another payslip showed a R500 deduction for a jacket, another a “fine” for calling in sick and still another showed a R400 per month deduction for transport, none of which had ever been discussed with the workers.
The guards at the meeting said they were apprehensive about their 12-hour night shifts. Many of the shifts involve patrolling outdoors without access to a guard house, toilet facilities, wet weather clothing or any kind of protective weapons. Lightning, thunderstorms and attacks by criminals are their greatest fears.
Calls for insourcing
The municipality is unpopular with the guards for refusing to insource or hire them directly. Instead, it uses private companies that employ workers for jobs such as guarding sewage plants and patrolling dangerous areas at night.
The guards queried the need for private security companies and if anyone at the municipality benefits from the arrangement. “George municipality does not insource due to cost. Very few metros and municipalities do insource such services,” municipal communications manager Chantel Edwards-Klose said. Security guards have been insourced by the City of Johannesburg and some in Nelson Mandela Bay.
The hands-off approach benefits the municipality when the companies with which they have contracts breach the law, because the municipality does not need to intervene or take any action. Edwards-Klose says, “The complaints referred to are between the employer and employee, and the employees have recourse to the Department of Labour, the PSIRA [Private Security Industry Regulatory Authority], etc. The municipal contract is with the service provider.”
She said the municipality had, in the past, facilitated meetings between guards and their employers “and has cautioned the service providers to ensure that their systems and requirements are in place”. But she would not say which companies the municipality had cautioned or what was discussed at the meetings.
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When asked about the specific case of Bamogale Security Solutions’ unlawful action of dismissing employees by text message, Edwards-Klose said the company’s dealings with its employees were not the municipality’s issue.
Socacof general secretary Bathandwa Arries says there is a culture in George of security companies that operate as fly-by-nights with permission from everyone except the guards. “The companies give themselves the ability to deduct what they want from our pay. We are subjected to intermittent survivalist and precarious work,” he said.
Socacof says their major problem now is the ongoing reluctance of the department, CCMA, PSIRA, public protector and municipality to tackle these alleged breaches of labour law.
Ignored protests
Socacof has held several peaceful marches and submitted detailed memorandums of their grievances to these institutions since 2014. But nothing has been addressed or solved. “How do you have a situation where the security guards in Southern Cape are having the same problems over and over again for six years and these are never resolved?” asks Arries.
“There is dysfunctionality and ineffectiveness of the department to discharge its constitutional mandate to protect the poor workers,” says Mapapa.
In a 2017 meeting with officials from the department, who said they had been sent by former minister of labour Mildred Oliphant, Socacof was barred from taking notes, recording the meeting or bringing in a George Herald newspaper journalist, and it never received the minutes of the meeting. In the meeting, the department agreed to take action against the non-complying companies but never did.
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Mapapa says that same year, a labour inspector arranged a meeting with Socacof but then cancelled the meeting the day before. The public protector then called Socacof to a meeting that was also subsequently cancelled.
In June 2017, the George Herald reported that the department said it had conducted “numerous” inspections and had enforced compliance. But the details of the enforcement actions have never been disclosed. Department spokesperson Teboho Thejane declined to say which companies had been inspected and ordered to comply with the law. He would only say, “The department continues to work with all stakeholders in providing support to promote compliance. Any company found wanting in convening the legislative framework that governs the work of the department is issued with relevant notices to correct the situation, and the relevant prescripts are followed by the relevant inspectors to enforce.”
But the problems experienced by the guards have continued.
Workers want to meet minister
“We are at the point where we have exhausted every relevant avenue to get these matters dealt with,” said Mapapa.
Socacof now wants a meeting with the minister of labour, former union leader Thulas Nxesi. The organisation is hopeful that if Nxesi was aware of their plight, he would intervene. They also want Parliament’s portfolio committee on labour to look into their situation, and have the labour department, the PSIRA, the PSSPF and the CCMA to appear before it and account for their actions, or lack thereof.
When asked about Socacof members’ complaints, the department had no answers. Thejane said it had held several meetings with Socacof and agreed that the George office of the department would process all individual cases brought to it. “Insofar as the allegation of the irregular things supposedly done by some of the security companies, the department advised that those should be referred to PSIRA,” Thejane said.
The Private Security Industry Regulation Act established the PSIRA to maintain “a trustworthy and legitimate private security industry”. It has the power to “deal with any evasion, abuse or violation” of the law and must hire investigators who have widespread powers to inspect security companies without notice. However, PSIRA spokesperson Siziwe Zuma did not respond when asked if it had inspected any of the George security companies.
Public protector spokesperson Oupa Segalwe said it was untrue that the public protector has not helped Socacof members, adding that they had resolved certain individual matters. Regarding the forum’s complaint of department inaction, Segalwe said “the matter was attended to and a closing letter advising the complainant of procedures to follow was issued”.
Mokgadinyane said the CCMA had recommended that if security guards had problems, they should approach their employers’ human resources department, the PSIRA, their local arbitration office or their local labour department office depending on the problem. All this, the workers have done.
*Names have been changed
