In Kenya, rider-hailing drivers are excited. The same in South Africa. But not in the same way. In South Africa, the lines of litigant drivers are gaining distance, stretching out their elasticity. There, two law firms have inhaled some inspiration from the recent judgment of the highest court of the United Kingdom, sitting at Parliament Square, against Uber. The judgment is simple in summary: if you control drivers, they are your subordinates; and if they are your subordinates, they are your workers, not independent contractors, not any other jargons.
But even the two law firms in South Africa are different. One, Leigh Day, the renowned law firm that triggered Uber’s ordeals in UK courts — with offices in Birmingham, Chesterfield, Liverpool, London, Manchester, Newcastle — wants to migrate to South Africa, by way of assistance— allowed to do so as long as its lawyers are licensed in South Africa. The other, Mbuyisa Moleele Attorneys, based in Johannesburg’s capital and famous for the gold miners’ case, wants to lead the protest from home. The common agenda has since been set: to reclassify all South African Uber drivers as workers and not independent contractors. Therefore, they are headed for the Johannesburg Labour Court, in a class action suit.
“South African legislation relating to employment status and rights — the Labour Relations Act and the Basic Conditions of Employment Act — is very similar to UK employment law,” the two firms said in a joint statement.
“Furthermore, Uber operates a similar system in South Africa, with drivers using an app, which the UK Supreme Court concluded resulted in drivers’ work being ‘tightly defined and controlled’ by Uber,” they added.
But then, it is still a long journey from here…
Between South Africa and Kenya, there is remarkable difference on how the battle is being fought. In Kenya, it is the country’s minister of Labour and Social Protection, Simon Chelugui, who is drawing out the dagger. This week Tuesday, the issue became so overpowering that he had to call a meeting. The drivers, mostly of Uber, were bearing banners; the stage was set. But what came next was neither a rude shock nor a big relief: just some form of speaking from both sides of the mouth.
“The ruling in London on Friday, does not apply to our jurisdiction,”Chelugui said, glancing over the drivers. “We can only reference, it can only persuade us, but we cannot act on it as a country.”
And then creepily, aiming towards the rapid surge in ride-hailing apps in Kenya, he sought a balance in his statements.
“The labor laws on internet based services have not been properly developed,” he said, “and we will need an engagement as a ministry to develop regulations and guidelines on how to run such an economy.”
And that was the end, but the beginning of a new chapter.
If Drivers Kill Ride-Hailing Apps, What Would Be Left For Them?
In South Africa, Uber has been quick to issue a rather lengthy statement initiating this discussion.
“At a time when we need more jobs, not fewer, we believe Uber and other platforms can be a bridge to a sustainable economic recovery. Uber has already produced thousands of sustainable economic opportunities,” the statement reads in part.
By October 2019, there were already 13,000 active drivers in South Africa and each of them had completed 38775 trips since Uber set its foot in the country in 2013. In Kenya, the number is 12,000 drivers as at November, 2020. In Nigeria, it is 9000 as at 2018. In Egypt, 200,000 as at 2020, since it was launched in Cairo in 2014.
Now, torn between these metrics and a fair life, the drivers have found themselves floundering in a deep blue sea of choosing to quit or to stay while responding to perpetual rounds of ride-hailing requests mindlessly.
Read also:Uber Test-runs Intercity Bus Service in Egypt
“I am suffering but those who are suffering the most are those who depend on earning a living as a ride-hailing driver using a car purchased on installments,” Hani Al-Sawi, an Egyptian Uber driver, who was working with his own private car told Ahramonline last year.
“Their revenue cannot cover operating costs, due installments, and their need for a livelihood, and so they have sold their cars to pay the installments and are now looking for another job,” added Abdel-Aziz, another Uber driver.
Last year November, Tony West, Uber’s senior vice-president, said as one of Uber’s top 10 markets globally, Egypt is “one of the most important markets for the US-based ride-sharing company in the Middle East.” His statement is evident in the $3.1bn acquisition of Careem, Uber’s Middle Eastern rival in the ride-hailing business.
Across the sea to Kenya, the stories are the same for drivers. Starting from 2016 through 2017, 2018, 2019, 2020 and now 2021, it has been endless strikes and protests for all digital taxi drivers.
“The fare prices keep on reducing because of the competition with other apps,” Denis, an Uber driver was quoted as saying during the 2018 protest. “ In the long run, it is us, the partners and drivers, who are losing. We are being oppressed,”
Paul Oyer, Stanford Graduate School of Business professor, who has written extensively about the gig economy, believes this.
“It doesn’t make a lot of sense to go out and invest a lot of money in a car for the sake of driving it for Uber — there isn’t enough money to be made for your time and the costs of car ownership,” he said.
Redesigning A Model Free From Excessive Control
One thing is certain from all these: the days of excessive controls over drivers by digital ride-hailing companies are numbered, not with the mounting tides of pressure from drivers’ unions.
Therefore, at this stage, one particular element that the entire gig economy, especially the ride-hailing apps should consider while building their products, to run away from this precedent set by the UK’s supreme court is the element of control.
| S/N | Types of Control | Conclusions by the UK Supreme Court in Landmark Case, Uber BV and others (Appellants) v Aslam and others (Respondents) |
|---|---|---|
| 1 | Can drivers determine their remuneration, in any way? | No |
| 2 | Are contractual terms of engagement with drivers negotiable? | No |
| 3 | Do drivers have absolute control over acceptance or cancellation of trip requests? | No |
| 4 | Do drivers have a choice of vehicle types, routes they follow? | No |
| 5 | Are ratings on drivers by customers used to whip drivers into performance? | Yes |
| 6 | Do drivers have any say in communications with riders, regarding pay, complaints, contact details, etc? | No |
The element of control in digital ride-hailing services has become so important that it cannot be continued to be ignored. “The greater the extent of such control, the stronger the case for classifying the individual as a “worker” who is employed under a “worker’s contract”.”— the court in the case above stated.
Charles Rapulu Udoh
Charles Rapulu Udoh is a Lagos-based lawyer who has advised startups across Africa on issues such as startup funding (Venture Capital, Debt financing, private equity, angel investing etc), taxation, strategies, etc. He also has special focus on the protection of business or brands’ intellectual property rights ( such as trademark, patent or design) across Africa and other foreign jurisdictions.
He is well versed on issues of ESG (sustainability), media and entertainment law, corporate finance and governance.
He is also an award-winning writer
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