The equitable foundations of South African labour law: an historical and comparative study
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 equity. 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 adjudicator. 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 equitable principle. 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 imperative. 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 will. 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 labour law. 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 Constitution. 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 disputes. 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.
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