Behind the allure of the latest styles lies a stark reality: The fashion industry, particularly its fast fashion segment, is built on a foundation of environmental devastation and human rights abuses.

At the end of his visit to South Africa late in 2023, the UN Special Rapporteur on Toxics and Human Rights, Marcos Orellana, issued a statement which referred to the apartheid legacy of environmental racism and noted that environmental impacts are still “disproportionately impacting marginalised and poor communities” in South Africa today.

Although there is some mention of workers, Orellana did not mention constitutional labour rights or legislation when referring to several other rights and emphasising that there is a need for the environmental right to be upheld for all.

Unfortunately, opportunities for making the interdependence of labour and environmental rights visible are often missed, which obscures the need to address both in a synergistic way when tackling the root causes of environmental injustice.

What workers do within the factory fence, and what they are exposed to inside that fence, has an effect on the environment outside it. In that sense, workers are the proverbial canaries in the coal mine as poor working conditions often have spillover effects into the external environment.

As Rod Crompton and Alec Erwin noted just more than 30 years ago, “struggles for health and safety in the workplace constitute the first line of defence for an embattled environment”.

Alongside the externalised environmental impacts… working conditions are frequently marked by extremely poor wages, child labour and exposure to hazardous conditions.

The fast fashion industry provides clear examples of how environmental problems often go hand in hand with labour ones. Fast fashion, which is the business model that emerged to make inexpensive clothes widely available, has been heralded by some as the “democratisation” of fashion.

But it comes at a cost, incurred mostly in the Global South, of enormously negative environmental and social impacts being embedded throughout its life cycle.

Alongside the externalised environmental impacts of excessive water consumption, toxic chemical use, carbon emissions and vast increases in disposal which make the industry the second-most-polluting in the world, working conditions are frequently marked by extremely poor wages, child labour and exposure to hazardous conditions – the latter being starkly illustrated by the 2013 Rana Plaza factory collapse in Bangladesh which killed 1,134 workers and injured another 2,000.

South Africa is experiencing its own struggle with the impacts of fast fashion. The Department of Employment and Labour has responded with a series of blitz inspections of textile and clothing businesses in recent months.

One that was reported recently at a textile and clothing company in Newcastle where four workers died and 18 were injured in a fire in June 2023, found the same substandard working conditions in the follow-up inspection, and reveals shocking practices that are reminiscent of those found under apartheid.  

That inspection is not an isolated example. Other inspections have also exposed a picture of severe exploitation and disregard for worker safety and dignity, with the ministry reporting an only 8% compliance rate among 70 inspected factories.

These findings include excessively long working hours, being locked in, lack of safety measures on machinery, inadequate emergency exits, insufficient sanitary facilities, absence of basic hygiene supplies and the absence of necessary legal compliance such as UIF contributions and registration with the Compensation Fund.

During the inspections, the department also found that many of the workers in these facilities are undocumented. These workers are therefore not only marginalised by their legal status but are also exposed to physical risks, further exacerbating their precarious situation.

The Constitutional Court has held that migrants are “the most vulnerable in our society, with no political or social influence over the laws that govern them, often living on the margins of society, without communal support, assistance or influence to ensure compliance with the law by public officials”. 

Instead of focusing solely on the employers who flout laws and exploit vulnerable populations, the inspections have also resulted in the arrest and deportation of the undocumented workers themselves.

In other words, they typify the type of communities to which the UN Special Rapporteur was referring. Significantly, the court found that “nonetheless [they] enjoy the protection of the Constitution, at least so far as the principle of legality, and their right to respect for their dignity, is concerned”. 

A logical implication of the judgment is that this protection extends to protection in terms of the environmental right and that if undocumented workers enjoy a right to an environment that is not harmful to their health or well-being, they also have a right to a working environment that is free from negative health and well-being impacts.

Nevertheless, although undocumented migrants are formally regarded as employees and therefore protected in labour law, fear of arrest and deportation may deter workers from reporting abuses, further entrenching exploitation. The inspections thus illustrate the complex challenges faced by undocumented migrant workers, who navigate not only the risk of exploitation by employers but also the threat of legal action against them.

The irony lies in the response to these discoveries. Instead of focusing solely on the employers who flout laws and exploit vulnerable populations, the inspections have also resulted in the arrest and deportation of the undocumented workers themselves.

These workers, in seeking employment, find themselves in conditions that no one should endure, only to be further victimised by a system that punishes them for their vulnerability – the antithesis of what is required in terms of environmental justice.

The operation, while ostensibly aimed at enforcing labour laws and improving working conditions, also perpetuates a cycle of exploitation and penalisation against those least able to bear it.

Moreover, these incidents reflect a broader issue where the responsibility and consequences are not adequately directed at those most at fault – the employers who exploit undocumented workers for profit.

While the Department of Labour’s actions against noncompliance and exploitation are necessary, the simultaneous criminalisation of undocumented workers does not address the root causes of their vulnerability. Instead, it underscores the precarious position these individuals occupy, where they face not only exploitation and hazardous working conditions, but also the constant threat of detention and deportation.

This action shifts the focus from the accountability of those causing the environmental and social injustice, often in contravention of the law, to penalising those who are the victims of the conduct.

Acknowledging that the enforcement of labour laws and the protection of workers’ rights is crucial, the inspections highlight the need for a more holistic and compassionate approach in tackling environmental and social injustice.

It calls for measures that protect workers from exploitation, ensure safe working conditions, and address the structural inequalities that lead to undocumented migration and employment in the first place, rather than merely penalising the workers themselves.

The fact that undocumented workers are arrested in these raids despite being victims of exploitation, highlights a profound irony. Instead of receiving support or assistance, these workers face penal consequences, underscoring a systemic failure to protect the most vulnerable.

This action shifts the focus from the accountability of those causing the environmental and social injustice, often in contravention of the law, to penalising those who are the victims of the conduct.

The inspections lay bare the harsh realities and ironies faced by undocumented migrant workers in South Africa. They highlight the need for a more nuanced approach that addresses the root causes of undocumented migration and labour exploitation, protects worker rights, and holds employers accountable for providing safe and humane working environments, rather than penalising the workers who are often the victims of broader systemic failures.

The integration of labour and environmental considerations is crucial for addressing the complex issues highlighted by the blitz inspections. A comprehensive approach that champions both robust labour protections and stringent environmental standards is essential for fostering a sustainable and equitable future.

This is the very real story of the clothes we wear, a tale of beauty marred by injustice, urging us to look beyond the surface and consider the true cost of staying in vogue. DM

Jenny Hall is Associate Professor in the Faculty of Law at the University of Johannesburg.

Marius van Staden is Associate Professor in the Faculty of Law at the Wits University School of Law.

The views expressed in this article are the authors’ own and not necessarily those of the universities.