The Labour Courts, fairness and the rule of law
Authors Andre van Niekerk
Affiliations: Judge of the Labour Court
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2451 – 2459
Articles by Judges Wallis and Froneman respectively have generated a debate on the rule of law and its application to labour matters. Judge Wallis has argued that the Labour Relations Act, in its application, has fallen short of the rule of law goals to which it aspired, largely on account of uncertain and unpredictable outcomes. Judge Froneman argues for a substantive rather than a formal conception of the rule of law, one that more concretely seeks to address our historical deficit. This article suggests that both conceptually and in relation to the day-to-day operations of the Labour Courts, a formal conception of the rule of law has its limitations. While a more substantive approach to the rule of law might better serve to define the concept of fairness that underpins the Act and its dispute resolution structures (if only because it demands a more critical approach), it is less easily translated into pragmatic goals. A greater concern is the unravelling of the corporatist premise on which the LRA is based. The continued ability of the statutory dispute resolution structures (including the labour courts) to institutionalise industrial conflict and contain worker discontent is the true challenge facing labour law in South Africa.