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)