Impact of South African Constitution & Role of Courts on Development of Collective Labor Law.

AuthorSmit, Paul


The formal South African labor relations system and first sets of labor laws had their origins in the discovery of gold and diamonds around 1886 and the subsequent development of the mining industry. The workforce of the mines consisted of two types or forms of labor; unskilled Black African mine workers who were also inexpensive, and skilled mine workers who mostly consisted of white men from abroad (Venter & Levy, 2015: 77). Skilled labor was very scarce and the provision of unskilled labor was also problematic as few blacks wanted to go and work in the mines. Black workers were seen as cheap labor and were viewed as threat to poor-white workers who were forced to move to the towns and found work on the mines after the Anglo-Boer War. This perceived threat led to strikes by white mine workers in 1907, 1908 and in 1911, and government was called on to actively protect white miners' interest (Williams, 1989: 51). Government introduced the Industrial Disputes Prevention Act in 1909 and the Mines and Works Act in 1911. These two acts excluded black workers from the definition of an employee and as such they were also excluded from collective bargaining.

The Rand Rebellion of 1922 led to the introduction of the Industrial Conciliation Act of 1924. This Act only recognized white trade unions and again Black workers were excluded for practical purposes from any form of collective bargaining (Venter & Levy, 2015:79). During the apartheid years in the period 1948 -1979 the major piece of labor legislation was the Labor Relations Act which was adopted in 1956, (1) many black trade union leaders were imprisoned in terms of the Suppression of Communism Act of 1957 as it would seem that the apartheid government viewed collective labor action as an insurrection.

After the Soweto uprising of 1976 the government appointed the Wiehahn Commission in 1977 to evaluate the labor dispensation in South Africa. The Wiehahn report of 1979 made far reaching proposals in terms of freedom of association; the government did not adopt all the proposals of the Wiehahn report but amendments were made to the 1956 Labor Relations Act (Labour Relations in South Africa, 2015: 82-89), Law @ Work (2015) 13. These amendments included labor and trade union rights for all workers and the establishment of the Industrial Court and the enactment of the definition of an unfair labor practice. Between 1980 and 1994 the jurisprudence that emerged from the Industrial Court created and defined both individual employment and collective bargaining rights (Van Niekerk, 2015: 12). (2) At this point in time there was neither the constitutional court nor a constitution in the Republic of South Africa, which made provision for constitutional collective labor rights.

A New Political Dispensation &New Constitution 1990-1994

Mr. Nelson Mandela was released from prison in 1990 and negotiations, CODES A, (3) took place between 1991 and 1993 at the World Trade Centre in Johannesburg. A declaration of intent was issued on 21 December 1991and agreed to by all parties, the most important sections of the declaration in terms of this paper were:

* To bring about an undivided South Africa with one nation sharing a common citizenship, patriotism and loyalty, pursuing amidst our diversity, freedom, equality and security for all irrespective of race, color, sex or creed; a country free from apartheid or any other form of discrimination or domination.

* To strive to improve the quality of life of our people through policies that will promote economic growth and human development and ensure equal opportunities and social justice for all South Africans.

* To set in motion the process of drawing up and establishing a constitution that will ensure, inter alia:

a) that the Constitution will be the supreme law and that it will be guarded over by an independent, non-racial and impartial judiciary;

b) that all shall enjoy universally accepted human rights, freedoms and civil liberties including freedom of religion, speech and assembly protected by an entrenched and justiciable Bill of Rights and a legal system that guarantees equality of all before the law. (4)

This declaration of intent of 1991 already contained important key words like equality, equal opportunities, social justice, supreme law, human rights, civil liberties, freedom of speech and assembly and Bill of Rights that found fertile ground in the Interim Constitution of 1993, (5) final Constitution of 1996, (6) and the Labor Relations Act of 1995. (7)

The first democratic elections in South Africa took place in April 1994. The enactment of the interim Constitution, which incorporated labor rights in a Bill of Rights, made it essential that the labor market had to be regulated and for new labor legislation to be adopted. (8) South Africa rejoined the International Labor Organization (ILO) in 1994 and ratified the core ILO Conventions. This in itself created international law obligations for South Africa, which demanded a review and adjustment of national legislation to give effect to these international obligations (Van Niekerk et al, 2015:13). (9) The historical background provides us with a taste of what was to come in the Constitution and also a better understanding of why things are the way they are.

Constitutional Provisions on Labor Law & Labor Relations

Bill of Rights: Section 2 of the Constitution makes it clear that the Constitution is the supreme law of the country. The Bill of Rights in chapter 2 applies to all law and it binds the executive, judiciary and all organs of State. (10) The Bill of Rights in chapter 2 guarantees, amongst others, equality, dignity, freedom of expression, freedom of religion, right to...

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