Abstract

This article examines how the common law regulating employment has developed over the past three decades. It reflects on the most significant cases dealing with contracts of employment during that period and how the law has evolved through those cases. While our common law of employment remains closely linked to Roman-Dutch law, the impact of the introduction of statutory protection for employees and the judicial interpretation of the scope and application of employment statutes has, somewhat surprisingly perhaps, rendered the common law less flexible than the system that Roman lawyers devised in a very different context. The article assesses whether the common law has the tools that it needs to respond to a rapidly changing world of work, and examines how employment statutes have, in effect, operated to tether the common law and have been interpreted in a manner that inhibits further development of the common law. Looking forward, the article assesses what changes in statutory regulation may be necessary or most effective to ensure that constitutionally supported employment protections and minimum standards, which broadly reflect twentieth century global consensus, remain relevant in the future, in the world in which South African citizens are most likely to find themselves working over the next three decades. The article identifies a significant disjuncture between current legal regulation and the reality of evolving working relationships under an increasingly wide variety of contracts and forms of work. Global instruments regulating the world of work are in a state of rapidly evolving transition. The article suggests that the South African legislature needs to follow suit, or it may find activist judges stepping in to fill the void.