Human Trafficking (Part II)
A Judge Who Stared at Slavery
- In 2011 Cape Town strip club Mavericks Revue sought a court injunction to stop the Department of Home Affairs from cancelling a business permit
- The move by the Director General aimed to seal loopholes in the law that allows South African companies to recruit foreign workers
- An investigation by the department into Mavericks had revealed serious violations of the conditions required of holders of such permits
- Judge Siraj Desai dismissed Mavericks’ argument that the Department had no legal grounds to withdraw the permit, and ordered an independent investigation into infringement of human rights of foreign ‘exotic dancers’ at the strip club.
Read Human Trafficking I
In October 2011 the Department of Home Affairs’ Director General took the bold decision to terminate various corporate permits issued to Cape Town strip-club, Mavericks Revue, after their investigations had revealed a series of abuses. Without ado – in what has become something of a norm with strip-joints and their high-earning legal teams – Mavericks strolled smugly over to the Western Cape High Court seeking an injunction to bar the department from cancelling the permits.
They had not bargained for Judge Siraj Desai, on whose honorable desk the docket landed. The learned judge rapidly spotted the loopholes such clubs have been using over the years, loopholes, which have allowed them to ship unsuspecting young women into the country to bind them into a peculiar sort of slavery.
It should be noted of course that, as a seaport of old, Cape Town has long been aswarm with women-hungry men of many kinds. Our Slave Lodge bears witness to the entrenched meeting of labour and sex, which underlies this windy town.
The permits in question are issued to corporations to let them recruit foreign workers who have skills not readily found among our own citizens. At some point the Department of Home Affairs saw fit to grant these permits on the basis that all a corporation had to do once it had obtained one, was simply to provide the Department with lists and details of foreigners they had contracted and “workers’ authorization certificates” would be issued accordingly. This was intended to bypass the lengthy waiting periods for processing of regular work permits.
Conditions to be fulfilled by employers included having to notify the Department promptly when the certificate-holder’s certificate expired, or when that person left their employ, and to ensure that the ex-employee afterwards left the country. Some corporations do comply with the conditions and this journalist’s investigation indicates that most appreciate the value of these permits.
Initially strip-clubs were excluded from those corporations that could benefit from this provision of the Immigration Act No. 13 of 2002. But with good (or bad) money, the strip-clubs managed to scream “discrimination” and in November 2007 the Court of Appeal (Case No. 576/06) unanimously dismissed the Department’s contention that strip-dancing wasn’t a skill the country lacked.
In that case, Mavericks Revue cc argued that the Department had no legal rights to exclude them from the benefits accorded other corporations – after all, the skill of dancing topless was so scarce locally that they had to import dancers from countries with an abundant supply, like former Soviet Union states.
As noted in Yulia Trofimenko’s story, most of the young women concerned had never danced topless professionally before. All club owners ask for, before they accept a potential “dancer”, is a photograph confirming sufficient attractiveness. Nearly all applicants get a spot at clubs.
However, the whole situation began to change in 2009 when a fresh team joined the leadership at the Department and each loophole previously exploited by strip-club owners could now get sealed. For starters, the Department established that, although holding a permit allowing it to “import” 200 foreign workers, Mavericks Revue never ensured that applicants left the country and would regularly apply for replacements to the certificates after presenting false claims.
As reported in Yulia’s story, the attorney of choice for Mavericks Revue was, and still is, Gary Eisenberg (who helped Yulia prepare her affidavit). Attorney Eisenberg had previously been reported as claiming that in the old days he could simply make a call to the Department’s officials in Cape Town and applications would be immediately processed for his later collection. The new team wanted everything in writing, and the attorneys and their clients found themselves cornered.
In documents seen by this journalist and also submitted to Judge Desai, Attorney Eisenberg had presented affidavits to the Department claiming that the holders of various “workers authorization certificates” had left the club’s employment and exited the country. In another instance, Eisenberg provided an affidavit made at a Cape Town police station claiming that certificates were either misplaced or lost. In all these cases, the Department’s own high-tech “alien-movement” tracking system showed that the certificate-holders in question had not left the country. They had either been married off to strip-club customers, or swapped or traded to other ”local owners”.
These and many other contraventions were sufficient grounds for the Director General of Home Affairs, Mkuseli Apleni, legally to withdraw the Corporate Permit from the club, which he did without hesitation. There followed Mavericks’ application to the High Court for an injunction (targeting the Minister and her DG).
This time, however, the Department was ready and they threw everything they could at the matter. With equally high-powered legal minds on board – A Schippers SC and K Pillay –the Minister and the DG showed the court not only how the club had contravened the Immigration Act, but also alluded to what any reasonable judge would have to see was a human rights’ violation.
Wondering aloud why his colleagues at the Bench hadn’t noticed the infringement of human rights, Judge Desai made some well-informed observations and dismissed, with costs, the strip-club’s application. In his judgment, he noted that the “foreign workers” were not employees of the club at all, but independent contractors who paid the club for the “privilege” to display their wares at the club:
“Mavericks does not conclude contracts of employment with the foreign nationals employed by it. In fact, the agreements concluded by them expressly state that it is not a contract of employment and that the foreign national will not be part of Mavericks' personnel structure or be on its payroll. Nor will she be providing services supervised or controlled by Mavericks. All Mavericks does is provide a venue for a limited period for the corporate workers to model and dance. In return, she – the corporate worker – must pay Mavericks the sum of R2000 per week, ostensibly as a levy for modeling and dancing at Mavericks' premises.”
The question of how these contractors were to earn enough to pay Mavericks Revue cc the required R2000 per week would take us back to Yulia’s story. [Supposing the club had the complete complement of 200 certificates they were entitled to under their corporate permit, uSpiked notes a weekly collection of R400,000, an amount that would be of some interest to the Receiver of Revenue.]
Advocate Anton Katz for Mavericks submitted that regardless of the wording of the contract, the said dancers were indeed employees of the club – a contention the honorable judge dismissed as being “simply incapable of fair-minded support”.
Furthermore, as if the advocate didn’t believe his own submission, Katz had also argued that “the utilization of corporate workers has been Mavericks’ practice from the beginning and it is too late for the respondents (The Minister and the DG) to now claim that this practice is illegal”.
To this the judge pointed out:“In accordance with the relevant statutory scheme a contract of employment must be entered into with a corporate worker. The fact that this may not have happened for a number of years does not render the unlawful noncompliance with these provisions valid.”
Reading the judgment one could say that Judge Desai didn’t write only as a judge, but as a concerned human being. [uSpiked believes that’s how we should all feel.] “The so-called exotic dancers come to this country having concluded a flimsy one-sided contract. They are guaranteed nothing. They have to share a room for which they pay rent on a weekly basis. They are not paid at all and given no benefits whatsoever. More alarmingly, they have to pay Mavericks R2000 per week. The contracts do not specify who pays for their plane ticket to South Africa and, if it is paid by Mavericks, when and how it is to be repaid.
“The contract does not specify what happens if they are unable to generate sufficient cash to pay the weekly R2000 and, if at all, they are entitled to keep certain basic sums – as a first payment – for food, shelter and clothing. Save to state vaguely that they are expected to model and dance on tables, there is no job description. What do they model? Are they fully informed as to the exact nature of the work they are expected to do, so that they can exercise some choice in the matter? Can they speak English? If not, are there people around with whom they can communicate?
“Though there have been several cases involving Mavericks and I assume that others [judges] have had sight of the contracts into which the dancers are obliged to enter, it appears that it has been blandly accepted that these are exotic dancers, whatever that may mean. The conditions under which the foreign dancers are procured, housed and expected to work makes them susceptible to exploitation. They are in a vulnerable situation and the fact that the person in control of them demands or, at least, expects large sums of money on a weekly basis places him in possible contravention of Article 3 Paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons.”
He then concluded by referring the matter to the Human Rights Commission to investigate whether the human rights of the “dancers” were being infringed and, if so, what steps could be taken to alleviate their plight. When the Commission had first presented their findings to the judge, it was discovered that Mavericks Revue executives had in fact supervised the “investigations”. The said executives even decided which of the dancers got to talk to Commission officials.
The honorable judge wasn’t accepting that and ordered the Commission to undertake an independent investigation. It’s been more than two years since the order was issued and the South African Human Rights Commission has yet to present its findings to the court.
Mavericks found the judgment altogether too bitter to swallow and they were to lodge an appeal. But as it turned out, the appeal they had in mind had more to do with attempts at arm-twisting.