Law, Democracy & Development - Volume 9, Issue 2, January 2005

This edition of LDD is in large part devoted to an assessment of the manner in which the Labour Relations Act 66 of 1995 (the LRA) has been interpreted and applied in the years since it took effect in November 1996. five of the articles are based on papers delivered at a seminar initiated by the Social Law Project at the University of the Western Cape and organised jointly with the faculty of Law at the University of Stellenbosch and with the Institute for Development and Labour Law at the University of Cape Town, which took place at the faculty of Law, University of Stellenbosch from 31 March to 1 April 2005.

The South African Labour Relations Act (LRA) was an essential part of the process of political democratisation. Together with the Bill of Rights, the Basic Conditions of Employment Act and the Employment Equity Act, it entrenched many of the basic labour rights which South African trade unions had demanded for over 70 years. It was a high water mark in the tide of social regulation of market relations, one that both astounded and inspired unions in other parts of the world who have been feeling the cold winds of economic liberalisation since the 1980s.

This paper seeks to explore three areas - all of which are pertinent to a 10 year review of collective bargaining under the Labour Relations Act ["LRA"].

The introduction of workplace forums by the LRA in South Africa was meant to facilitate a shift, at the workplace, from adversarial collective bargaining to joint problem-solving and participation on certain matters. This attempt met with strong resistance from the trade unions, which feared unwanted competition and a significant weakening of the trade union movement. Therefore, the original draft had to be changed in order to gain acceptability. The initiation and control of the workplace forums were put into the hands of representative trade unions (i.e. trade unions representing a majority of employees at the workplace) and collective bargaining became the instrument to extend the powers of the workplace forums.

Perhaps no section of the Labour Relations Act (LRA) has given rise to such widely divergent interpretations as section 197. In its short life, it has already given rise to two major controversies concerning its application, a Constitutional Court judgment which settled one of those controversies, a Supreme Court of Appeal (SCA) judgment which may well be the source of further controversy, and a book. In addition, Parliament felt obliged to rewrite the clause to make sure we all knew what it meant. What is significant about these controversies is that they concerned the application of the section and effectively emasculated its operation for much of the first decade of our new labour law.

Being asked to speak to a group of labour lawyers on the common law is akin to being invited to sample the delights of a hornets nest. For many labour lawyers any reference to the common law seems to conjure up nightmares of a retreat to legal formalism and an abandonment of fairness as the keystone for resolving the disputes that inevitably arise in the course of the relationship between employer and employee and between trade unions and employers. In fact for some, l suspect that what they would welcome hearing from me today is a rapid obituary for the common law insofar as labour law is concerned.

The issue of transformation of South African sport, with all the controversy it entails, again received public attention recently in three presentations to Parliament's Sport and Recreation Portfolio Committee. On 19 October 2004 the Department of Sport and Recreation briefed the Committee on a number of matters related to the gathering of information for a proposed Sports 'Transformation Charter'. On 22 October, the Committee received briefings from two of the major spans federations, Athletics South Africa and the United Cricket Board of South Africa, on progress in respect of transformation, challenges faced, and key strategic objectives.

South Africa is one of 57 countries in the world that have laws that establish mechanisms to access government-held information and is the first country in Africa to enact freedom of information laws. How the right of access to information forms the foundation for a democratic dispensation and an accountable government and civil society has been described by many authors.