The math was gruesome. ABI’s territory encompassed the provinces of Gauteng, North West, KwaZulu-Natal and parts of the Free State, and even in the East Rand distances could be long. To make anything resembling a profit, Tsolo knew that he had to deliver at least two loads a day. Second loads, however, were a rarity, which would have been easier to swallow were Tsolo able to understand the tariff breakdown. But Annexure A was a whirlwind of contractual sophistry, as vague as it was unintelligible.
All of the risk associated with delivering Coca-Cola and its brand-mates was now dumped solely on the owner-driver, a fact that became especially clear during times of trouble. No longer an employee, Tsolo was contractually obliged to drive his way through labour disputes. In 2010, when his truck was stolen from Germiston’s Golden Walk Mall during a drivers’ strike, Tsolo found that he could not apply for damages. “When an OD works during a strike,” he explained, “it’s your own baby. The truck is not covered.”
In 2012, the national truck drivers’ strike hit, and this time Tsolo pushed back. “They had me working Saturday and Sunday in no-go areas,” he explained. “The strike was very tense, especially in East Rand. Then ABI said to all of us—we must work.” Tsolo was at the time driving a loaner because his own horse was in the shop, and he knew he’d have to pay damages should any harm come to the vehicle. He requested an acceptance of liability letter, but his managers never drafted one. Across the East Rand trucks were being burned, so Tsolo opted to stay home. “Once bitten, twice shy,” he said.
On the following Monday, his distribution manager asked him to sign a letter stating that he was in breach of contract. He refused. On Tuesday, November 9, 2012, he was called into the office by the same manager and told that his contract had been terminated, but that he would have to work until January. His termination invoked clause 20.5.2 of the contract he had signed three years earlier. Tsolo read the details with astonishment.
According to the document in his hands, ABI could fire him “for any other cause.” Which, in strictly legal terms, meant that the company reserved the right to terminate the contract if, when and how they felt like it.
The next day, Tsolo started looking for a lawyer.
A docket called “Thabo Tsolo and 150 others vs ABI” is now before the Gauteng High Court. No one is expecting an easy fight. The proceedings will turn on the intent of the ABI owner-driver contract—a document that skilfully limns the no-man’s-land between employee and independent contractor. Was it ABI’s purpose to tart up what was in effect an employment agreement as a business relationship? Were the contracts signed under what could legally be considered duress? And, most importantly, did the contract undermine the ODs’ constitutional rights under the cover of a bunch of BEE blackwashing?
The lead lawyer on the case, Andries Nkome, won a measure of courtroom fame when he acted as part of the defence team for 279 arrested miners following the Marikana massacre. He’s been described in the press as an “EFF attorney,” and Daily Maverick Chronicle has learned that the advocate Dali Mpofu, the party’s national chairperson, has been approached to play a role. The case has drawn significant political interest because it’s easily described in terms of an ancient South African paradigm: White Monopoly Capital vs the Black Everyman. “The rights to which our clients are entitled to were trampled on,” Nkome said over the phone. “And these are basic rights, like the right to equality, the right to justice and so on.”
Stuart Wilson, an advocate and member of the Johannesburg bar, interprets the case in less emotive but equally damning terms. “It seems to me,” said Wilson, after reviewing Tsolo’s contract in detail, “that ABI sought to outsource its distribution network without either selling it off, which would have been a ‘transfer of business’ under section 197 of the Labour Relations Act, or retrenching its drivers, which would have attracted a series of procedural and substantive obligations—for example those set out in section 189 of the Labour Relations Act.”
In other words, the contract appears to be structured to give ABI employer-like control over the drivers, without actually establishing an employment relationship. ABI would argue that the drivers were free to pursue their own haulage businesses, but in practice ODs were only allowed to serve ABI under ABI’s terms, wearing ABI uniforms, their trucks decked out in ABI livery.
How, then, was this not an employment contract?
“Well, Clause 5 of the contract, in particular, reads like a set of obligations owed by an employee to an employer,” said Wilson. “Clause 5.3 is essentially an apologia for this, and records that despite the ‘prescriptive nature’ of the ‘owner driver’s duties’, the contract ‘does not in any manner whatsoever affect the independence of the owner driver.’”