|dc.description.abstract||From the dawn of Western civilization, philosophers and jurists grappled with the
nature and role of equity in jurisprudence. The Aristotelian theory of equity, as
expounded in the Nicomachean Ethics, eventually emerged as the enduring
equity paradigm in Western juridical thought. Aristotle taught that equity is an
inherent and indispensable part of law. Law can never exist without, or ignore
However, even Aristotle and his followers admitted that the notion of equity is
fraught with difficulty, hence they never provided any definition of equity. To
Aristotle, it sufficed to state that equity was an inherent part of the virtue of
justice, to be applied where law in the strict sense failed, such application always
to be according to the circumstances of each case.
The Roman jurists eagerly embraced the Aristotelian paradigm, regarding equity
as a virtus or virtue - the virtue of living honestly, giving everyone his due, and
causing injury to nobody.
The Greco-Roman virtue theory of fairness aimed at the ideal of human
perfection. Equity involved not simply the performance of objectively existing
duties, but also the subjective and personal attribute of a virtuous disposition.
The great Roman Dutch jurists were ardent adherents of Aristotelian doctrine.
They emphasised that, with custom, equity was part of the unwritten law. Unlike
law in the strict sense, equity was a matter best left to judicial discretion. There
is a need for equity as the Legislator cannot by means of antecedent statute of
general application provide fair solutions to the infinite variety of cases that
present themselves for adjudication on a daily basis. In such situations, the
equitable judge should consider and adjudicate the case before him, taking into
account all relevant circumstances.
Cicero, the Roman jurist, handed down a well-known adage to posterity, namely
summum ius summa iniurie - the highest or best law often allows for the
worst forms of injustices or unfairness.
Hugo Grotius attached great significance to the conscienability attribute of
fairness. He emphasized that the judge takes an oath of office to the effect that
he would act according to the dictates of his conscience.
An equitable judgment was a reasoned judgment, devoid of anything capricious,
arbitrary or whimsical. It was a judgment infused by reason. Even a
conscionable judgment was a reasoned judgment. Already in the 13th century
Thomas Aquinas, the prime authority for Grotius and others in this regard, wrote
that conscience was a judgment of reason.
Influenced by the Biblical doctrine of the Fall of Man, the Roman Dutch jurists
recognised the fact that at times, the reason of man was a sullied or muddled
reason, hence they insisted on recta ratio, or sana ratio - literally sound reason.
Sound reason required judicial impartiality, personal disinterestedness, and all
other factors which modern labour law would require of a good judge or
For various reasons, mainly historical, there is a dearth of direct textual
authority on Roman and Roman Dutch labour law. A complete picture of the
labour law of this epoch is unavailable. By means of textual analysis, criticism,
and harmonization, we managed to form a still incomplete but bigger picture of
Roman and Roman Dutch labour law. Our conclusion in this regard is that both
systems knew a comprehensive equitable labour law regime, much as we
currently have in South African law under the Constitution, 1996, and the Labour
Relations Act, 1995. The common law of labour was therefore not devoid of
So for instance, in sharp contrast with the English and American common law of
dismissal which embraced the principle of employment at will, classical Roman
Dutch law required lawful and even fair reasons for dismissal. Whereas in
English and American Common law a judge was incompetent to inquire into the
reasons for dismissal, such reasons being legally irrelevant, the very essence of
the judicial function in Roman and Roman Dutch law was to investigate the
lawfulness, reasonableness and fairness of such reasons.
Unlike English and American common law where a dismissed employee could at
most be awarded token damages in the form of the equivalent of the wage he
would have earned had the notice period been complied with by the employer,
the relief for unlawful, unreasonable and unfair dismissal in Roman and Roman
Dutch law was a substantial relief in the form of damages representing the wage
that would have been earned during the remaining period of service.
In Roman Dutch law, a contract of service and all its terms as such, were void if
it violated fairness, good faith or morality.
Modern Dutch law built further upon these cornerstones of the common law, and
adopted these requirements as the foundations of its most comprehensive
principle of employment law, namely the good employer-good employee
But despite the comprehensive equitable regime which formed the hallmark of
the common law of labour, unsavoury doctrines such as employment and
dismissal at will, forfeiture of wages already earned by some categories of
dismissed workers, indivisibility of labour and token or notice damages where
the required notice of dismissal had not been given, incrementally infiltrated
early South African labour law through erroneous judicial recognition and
application. But it was not these doctrines as they appeared in some old Dutch
urban placaats and by-laws that served as the sources of judicial inspiration in
this regard. These were specifically disavowed in cases like Spencer. At the
early stages of the development of a unique South African system of labour law
proper, it was rather English common law that served as judicial precedent.
Equity played no role in such precedent.
Even today, the application of equity in employment related issues is foreign to
English law. The prime English statute governing dismissal disputes, namely the
Employment Rights Act of 1996, is the only English piece of legislation making
provision for the application of fairness, but its field of application is limited to
unfair dismissal disputes. The concept of unfair labour practice remains foreign
to English law.
Equity also remains virtually unknown to American employment law. The
National Labor Relations Act of 1935 introduced the concept of unfair labour
practice, but its area of application is largely limited to collective labour law,
namely the relationship between employers and representative trade unions,
union membership and the like. The employment and dismissal at will principle
is still in full force in America. Only in 11 States has judicial creativity introduced
implied contractual terms to the effect that good faith and fair dealing should
govern the employment relationship. Even this move is relatively feeble, isolated
and quite casuistic, and has made little inroad on employment and dismissal at
As indicated earlier, unsavory doctrines such as employment and dismissal at
will, forfeiture of wages earned, token damages in respect of the notice period of
dismissal and the like, were nor derived from Roman Dutch Law, but rather from
English law as described above.
Such was the position when the Industrial Conciliation Act, 1956 was amended
in 1979, directly as a result of the Report of the Wiehahn Commission, which
first identified the need for a comprehensive equitable regime in South African
As a direct result of the recommendations of the Wiehahn Report, the erstwhile
Industrial Court was also introduced by the 1979 Amendments. There seems to
be a general consensus amongst labour lawyers today that the Industrial Court
performed pioneering work and that it left a rich jurisprudential heritage of
equity in labour matters. The drafters of the 1995 Labour Relations Act made
ample use of this heritage, and rightly so, we submit. But the drafters also
consulted foreign legislation. This was a prudent thing to do, even though it
seems that some of the textual deficiencies in the 1996 LRA could be traced
back to such legislation. It also appears as though the political and constitutional
junctures which obtained at the time that the 1995 LRA was drafted, left their
mark on the text of the LRA. It is not an indelible mark however. Although the
eventual LRA text was a political and ideological compromise somewhat hurriedly
constructed, it is still an impressive document.
Such deficiencies that still do occur in the text, need to be addressed by
legislative intervention. The problem in this regard seems to exist mainly in the form of shortcomings in the definitions of unfair labour practices, and to a lesser
extent, unfair dismissal, resulting in the LRA text not giving adequate expression
to the more general right to fair labour practices as enshrined in s 23 of the
The jurisdictional conundrum often resulting in forum shopping amongst litigants
has been largely addressed by the Constitutional Court in cases like Gcaba. The
same applies to the traditional differentiation or discrepancy between the status
and rights of public sector as opposed to private sector employees. However, it
is still desirable that the legislature address these issues again and harmonize
them as much as possible with the tenets of s 23 of the Constitution and the
guidance given by the Constitutional Court in this regard.
Both legs of South African labour law, namely the common law of employment
and the statutory scheme enshrined in s 23 (1) of the Constitution, as given
effect to by the LRA, 1995, give recognition to and a role for equity to fulfil.
The common law of employment assigns a supplementary, tempering,
moderating and correctional role to equity, whereas the statutory scheme raises
equity to the sublime status of ultimate yardstick for the resolution of labour
In this statutory scheme, fairness and fairness alone serves as the final
determinant of the fairness of labour practices, including dismissal.
The common law has virtually reached a ceiling of development as far as
employment fairness is concerned. S 23 (1) of the Constitution as given effect to
by the LRA, 1995, constitutes that ceiling.
In SA Maritime the SCA held that the common law cannot be developed to the
extent where it recognizes an implied term of fairness in contracts of
employment. The rationale for this decision was that such development would
intrude onto the terrain of the statutory scheme, and was therefore not intended
by the legislator. A development of this nature should best be left to the
legislature, the courts argued since SA Maritime. English persuasive
jurisprudence such as Johnson v Unisys played a pivotal role in this regard, as
it will without doubt do in the foreseeable future.
The obvious vehicle to be used by the Legislature for this purpose is appropriate
amendment of the LRA. We have noted that although a progressive piece of
legislation, the LRA suffers from many deficiencies in its quest to give effect to
the imperative contained in s 23 (1) of Constitution, namely the right of
everyone to fair labour practices.
Hopefully the legislature will take note of SA Maritime and cases in similar vein,
and come forward with the necessary and desired amendments to the LRA so as
to take it to its next level of alignment with s 23 (1) of the Constitution.
In conclusion, a brief outline of the insights we have gained since the inception
of the Industrial Court, and even prior to that auspicious event, into the nature
and role of equity in South African labour law.
We subscribe to the view espoused by virtually all labour courts, but especially
the Constitutional Court, that it seems to be undesirable to provide a definition
of equity or fairness. The nature and role of fairness are dichotomous: on the
one hand is fairness a relatively familiar concept in daily use, not only in the
labour courts as such, but in virtually all courts of law. At times, the concept is
consciously and deliberately applied during the course of judicial activity, while it
sometimes fulfills its role quietly, unobserved and without any recognition.
Fairness is sometimes derissen by sceptics - mostly ignorant - while it is more
often eagerly embraced by realists, i.e. those who have come to the realization
that strict legal principle is sometimes hopelessly insufficient for the resolution of
legal disputes, and that equity has an inherently supplementary role to fulfil in
all legal practice. Moreover, in labour law such role is not merely supplementary,
but pivotal. Unfair labour practice and unfair dismissal disputes are ultimately
resolved by application of the criterion of equity alone, and nothing else.
But despite the healthy disinclination of the courts to provide an attempted
definition of equity, some theory of equity seems to be steadily developing. This
fledgling theory is torn between the opposites of strict law and the traditional
need for legal certainty on the one hand, and the inherent flexibility which is the
hallmark of equity on the other. A theory of equity should not be confused with a
definition of equity. In fact the very theory is predicated on the versatility,
flexibility and adaptiveness of the notion of equity - attributes not readily
accommodated by definition.
It is for this reason that we have entitled the section of this study dealing with
this theory merely as "factors informing equity". This is to emphasize that no
attempt is made at all to provide a numerous clauses or closed list of factors to
be taken into account by the presiding official applying equity. In fact such a
closed list will probably never be developed. The labour courts appear to be alive
to the unique opportunity that the open-ended, flexible and indeterminate
concept of equity provides them for the fulfiIIment of the ideal enshrined in s 23
(1) of the South African Constitutional, namely fair labour practices.||en_ZA