The present as history: Workers’ struggles and the law during and after apartheid

by | Mar 16, 2025 | ACTA, ACTA 2024

The present as history: Workers’ struggles and the law during and after apartheid

Authors Kally Forrest & Edward Webster

ISSN: 1996-2088
Affiliations: Former trade unionist and editor of the South African Labour Bulletin; Associate of the Southern Centre for Inequality Studies, and the Society, Work and Politics Institute; Fellow at the Johannesburg Institute for Advanced Studies; Edward Webster passed away on 6 March 2024. At the time, he was a Research Professor at the Southern Centre for Inequality Studies and held the
position of Professor Emeritus in the School of Social Sciences at the University of the Witwatersrand
Source: Acta Juridica, 2024, p. 1-31
https://doi.org/10.47348/ACTA/2024/a1

Abstract

Black workers in South Africa in the 1970s fought successfully for their right to be included in the law. Through militant struggles, and with the aid of pioneering lawyers like Halton Cheadle, they produced an inclusive Labour Relations Act (LRA) and the attendant Basic Conditions of Employment Act. Through its independent power base connected to the shopfloor, the labour movement gave trade unions the capacity to mobilise and restrain members, which they used to negotiate to expand legal rights and organisational space and pursue worker control at workplace and industry levels. However, the LRA, and its employer–employee binary, marginalises informal workers, and these workers are now waging a battle for recognition. The struggle for informal workers’ rights unfolds in a more challenging environment than the 1970s, and no significant changes in law have emerged in the last twenty years of organising. This makes redefining the LRA complex, as informal workers may be own account workers and micro-employers. Labour law is not responsive to the needs of workers in the informal economy and an experimental environment is encouraged. The world of work has changed to such an extent that perhaps we now need the equivalent of the Wiehahn Commission, which transformed the world of labour in the 1980s.

An elusive pursuit: Challenging invalid dismissals – then and now

by | Mar 16, 2025 | ACTA, ACTA 2024

An elusive pursuit: Challenging invalid dismissals – then and now

Author Paul Benjamin

ISSN: 1996-2088
Affiliations: BA LLB (UCT) LLM (Warwick); Director, Cheadle Thompson & Haysom Inc; Extraordinary Professor, Faculty of Law, University of the Western Cape
Source: Acta Juridica, 2024, p. 32-54
https://doi.org/10.47348/ACTA/2024/a2

Abstract

The independent trade union movement that emerged from the 1973 Durban strikes developed legal strategies to protect their members, who were primarily African workers excluded from participation under the Industrial Conciliation Act 28 of 1956. Chief among these strategies was the institution of litigation seeking to nullify dismissals that violated statutory victimisation provisions in those laws that covered African workers. The apartheid-era bench was largely hostile to this approach, and it was not until the 1982 full bench decision in National Union of Textile Workers v Stag Packings that orders of nullity and reinstatement became a possibility. However, by this time the powers of the industrial court, which had been established in 1980, had been extended to include status quo orders and the unions were able to achieve unprecedented protection for their members as the industrial court asserted its unfair labour practice powers. This article explores the legal strategies reflected in the litigation and engaged scholarly writing that gave rise to this important judgment and comments on its significance for contemporary labour law in South Africa.

The evolution of the right to fair procedure in dismissals for misconduct

by | Mar 16, 2025 | ACTA, ACTA 2024

The evolution of the right to fair procedure in dismissals for misconduct

Author André van Niekerk

ISSN: 1996-2088
Affiliations: BA LLB MA (Witwatersrand) LLM (Leicester); Judge of the Labour Appeal Court of South Africa
Source: Acta Juridica, 2024, p. 55-86
https://doi.org/10.47348/ACTA/2024/a3

Abstract

The obligation to follow a fair procedure before dismissing an employee for misconduct, certainly in the private sector, has its origins in the concept of the unfair labour practice, introduced in 1979 by way of an amendment to the Labour Relations Act 28 of 1956. This article traces the history of the development of a right to fair procedure before a decision to dismiss, and attempts to identify the normative basis of and justifications for that right. These included international standards, comparative law, the principles of administrative law applicable to public sector employees, and employer best practice. By 1994, a ‘criminal justice’ model had evolved, in which pre-dismissal procedures were equated with procedures applied in a criminal court. The Labour Relations Act 66 of 1995 (in particular, the Code of Good Practice: Dismissal) attempted to reduce the cost of elaborate workplace procedures. The legislative package introduced a system of compulsory arbitration for disputed dismissals, with a primary remedy of reinstatement for dismissals found to be substantively unfair, and compensatory awards for dismissals found to be substantively fair, but procedurally unfair. This approach reflects both respect for the autonomy and dignity of the employee, and a justification based on maximising the general welfare. The general welfare is maximised by accommodating the diversity and flexibility of procedural standards, promoting rational decision-making in disciplinary matters, and eliminating the cost of duplicated processes. The Code thus ultimately seeks to combine the normative ideals of worker protection with the achievement of productive efficiency.

Beyond bargaining: New horizons for consultation

by | Mar 16, 2025 | ACTA, ACTA 2024

Beyond bargaining: New horizons for consultation

Author Clive Thompson

ISSN: 1996-2088
Affiliations: BA Honours (Stell) LLB (UCT); Director, CoSolve; Research affiliate, African Centre for Coastal Palaeoscience, Nelson Mandela University
Source: Acta Juridica, 2024, p. 87-116
https://doi.org/10.47348/ACTA/2024/a4

Abstract

For unions worldwide, winning the right and space to engage in collective bargaining, so empowering them to forge a better deal for their members, has been a central goal for over a century. Bound up with that process has been the pursuit of a right and capacity to strike. Consultation is a more subtle form of engagement, one that has attracted less attention and resources. However, once the raw battles over union recognition and basic employee protections and rewards have been played out, influence in the workplace begins to matter as much as power. A sophisticated framework for consultation affords employees considerable latitude to shape their workplaces even as employers gain from a more fruitful engagement with their workforce. This article examines how different legal systems deal with the often intertwined processes of bargaining and consultation, contrasting some European, Japanese and Anglosphere track records. It also compares in closer detail the South African and Australian experiences, advocating a heightened role for consultation in workplace affairs.

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

by | Mar 16, 2025 | ACTA, ACTA 2024

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

Authors Evance Kalula & William Mokofe

ISSN: 1996-2088
Affiliations: LLB (Zambia) LLM (London) PhD (Warwick); Professor Emeritus of Law, University of Cape Town; Independent Chairperson, ILO Committee on Freedom of Association; LLB (UFH) LLM LLD (South Africa); Advocate of the High Court of South Africa; independent researcher
Source: Acta Juridica, 2024, p. 117-148
https://doi.org/10.47348/ACTA/2024/a5

Abstract

This contribution is a tribute to Halton Cheadle’s work over the years, particularly his significant contribution to labour legislation and policy development and the enhancement of the role of international labour standards (ILS) in the SADC sub-region and elsewhere in Africa. Ever since the establishment of the International Labour Organisation (ILO) more than a hundred years ago, ILS has been a persuasive instrument in the search for universal democratic governance norms worldwide. Nowhere has that influence and impact been as visible as in developing countries. The impact of ILS in Southern Africa has been profound, not only in the struggle against racial discrimination, for instance in Zimbabwe and South Africa, but also in fostering labour rights through what was later designated as ‘decent work’. In more recent years, the promotion of ILS has been extended through the reform of labour legislation and policy. Cheadle has been deeply involved in the work of labour law reform, starting with South Africa in 1994, efforts that culminated in the current Labour Relations Act 66 of 1995, and then other African countries, such as Nigeria and Tanzania. His contribution continued when he served as a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). In an era that can be characterised as one of ‘global polycrisis’, the importance of ILS as a well-tested yardstick, renewed to address the challenges of a rapidly changing world of work, has become greater than ever before. This article will examine and analyse selected areas related to democratic governance developments.

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

by | Mar 16, 2025 | ACTA, ACTA 2024

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

Authors Debbie Collier & Shane Godfrey

ISSN: 1996-2088
Affiliations: BA LLB (Rhodes) LLM PhD (UCT); Professor of Law and Director of the Centre for Transformative Regulation of Work, University of the Western Cape; BA (Hons) MA PhD (UCT) BProc (UNISA); Honorary Research Associate at the University of Cape Town; Honorary Senior Research Fellow, Global Development Institute, University of Manchester; Associate, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Acta Juridica, 2024, p. 149-182
https://doi.org/10.47348/ACTA/2024/a6

Abstract

This article examines the role of ILO technical assistance in lawmaking and labour law reform, focusing on assistance provided in Lesotho prior to enactment of the Labour Act of 2024. ILO technical assistance often involves the use of external experts with significant influence over the development of domestic labour laws, raising questions about integrity and inclusivity in the law-making process. Drawing on our involvement in Lesotho’s labour law reform efforts between 2014 and 2024, the article considers key aspects of ILO assistance in the country’s unique socio-economic context. It highlights the importance of ensuring that labour laws are not only technically compliant with ILO conventions, but are also shaped by the deliberations of domestic stakeholders and are socially relevant and responsive to local employment and economic realities.