Freedom of Association and Trade Unionism in South Africa: From Apartheid to the Democratic Constitutional Order¶
Mpfariseni Budeli; Evance Kalula; Chucks Okpaluba (2008). Freedom of Association and Trade Unionism in South Africa: From Apartheid to the Democratic Constitutional Order. Development and Labour Monograph Series, 2/2008. Institute of Development and Labour Law, University of Cape Town.
| Type | report |
| Scope | Wider apartheid literature |
| Method | synthesis review |
| Period studied | 1652–2007 |
| Regions | South Africa, Witwatersrand |
| Themes | unions strikes, labour markets wages, origins segregation, politics ideology elections, transition post apartheid, resistance social movements, comparative theory |
| Citation key | budeli2008 |
Argument¶
The monograph is a legal-historical study of how freedom of association and trade union rights were denied, restricted and later guaranteed in South Africa. It argues that colonial and apartheid labour law built a dual, racially exclusive industrial relations system that shut African workers out of statutory union rights. Black unions nonetheless organised and helped end apartheid. The Wiehahn reforms of 1979 onward began to integrate labour law, and the 1993/1996 Constitutions and the 1995 LRA entrenched union rights in line with ILO Conventions 87 and 98. About half the text surveys foreign, regional and international law as a comparative framework.
Evidence and method¶
Statutes, commission reports (Botha 1951, Wiehahn 1979-81), Industrial Court cases, constitutional texts, ILO/UN/regional human rights instruments, and secondary labour-law and industrial-relations literature (Brassey, Finnemore & Van der Merwe, Bendix, Jones and others). Largely endnotes to legal and secondary sources; no new archival or quantitative data.
Place in the debates¶
- Liberal-political versus functional conceptions of freedom of association (see Black trade unions: growth, wage effects, Wiehahn and strategy). Favours the functional/collective view: the right exists to secure a more equitable distribution of power at work and is both individual and collective, not an individualistic right to an isolated existence.
- Role of white labour and race in the origins of the exclusionary industrial relations system (see The job colour bar, white labour and its erosion). Attributes the colour bar and the dual system to white workers' fear of cheaper black competition and to employer and state use of that division, culminating in the 1922 Rand Rebellion and the 1924 ICA.
- Why the apartheid state reformed labour law (Wiehahn) (see Black trade unions: growth, wage effects, Wiehahn and strategy). Attributes reform to the shortage of skilled workers and international pressure, plus the unworkability of the dual system after the 1973 strikes. Does not weigh competing explanations in depth.
Findings¶
-
The 1924 ICA gave legal recognition to unions but created a dual, racially determined system that excluded Africans. (p. 25)
the ICA established a dual, racially-determined system of industrial relations and excluded African and Black workers from the statute’s definition of “employee” and therefore from the membership of registered trade unions
-
The 1911 Mines and Works Act and Native Labour Regulations Act entrenched the colour bar and banned strikes by blacks, a pattern then spread to other industries. (p. 21)
This Act excluded blacks from all skilled jobs requiring certificates of competency and from certain semi-skilled jobs in the mines.
-
Black unions remained legal but unregistered under the 1956 ICA, so their agreements had no statutory force. (p. 31)
They could negotiate with individual companies and conclude collective agreements with them, but these agreements had only civil jurisdiction. They could not be enforced under the provisions of the ICA.
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The 1956 ICA prohibited the registration of multi-racial unions and formalised job reservation. (p. 31)
The new Act prohibited the registration of multi-racial unions and obliged those that were already formed to subdivide into segregated unions.
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The 1973 strikes demonstrated black workers' power and spurred independent unions despite their lack of formal recognition. (p. 32)
It became clear that even without the backing of any formal workers’ organisation, black workers could pressurise the government on labour issues.
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Wiehahn recommended freedom of association for all employees regardless of race and the registration of non-racial unions. (p. 33)
recommended in its 1979 Report that freedom of association be granted to all employees, regardless of sex, race or creed, and that trade unions be allowed to register irrespective of their composition
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Amendments after Wiehahn produced rapid growth of black-representing unions, described as a virtual revolution. (p. 34)
As a result, there was a rapid growth in the number of trade unions representing black workers.
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The Industrial Court developed a body of case law that strengthened union bargaining power despite its conservative judges. (p. 35)
The court introduced notions of fairness and international labour standards into the melting pot of South African labour law, which grew into a formidable body of jurisprudence
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The state secretly sponsored UWUSA in 1986 to counter COSATU. (p. 36)
it had secretly sponsored UWUSA.
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The 1990 Laboria Minutes agreement among state, capital and labour began the repeal of the offensive 1988 provisions. (p. 38)
Talks took place between the state, capital and labour that produced an agreement to repeal the challenged provisions.
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The 1995 LRA brought all employees under a single industrial relations system for the first time. (p. 69)
For the first time in South African labour history, all employees were brought under the ambit of one industrial relations system.
Evidence ledger¶
Sources used¶
| Source | Kind | Period | How used |
|---|---|---|---|
| Report of the Industrial Relations Commission of Enquiry (Botha Commission), UG 62 of 1951 | commission or official report | 1948-1951 | Establishes the Commission's recommendations on recognising but segregating black unions, restricting strikes and barring political activity, which the 1953 and 1956 statutes followed. |
| Report of the Commission of Enquiry into Labour Legislation (Wiehahn Commission), Part I RP 47/1979, with Reports 38 of 1980 and 27 of 1981 | commission or official report | 1977-1981 | Shows that the Commission proposed freedom of association for all employees, non-racial union registration, abolition of job reservation and an Industrial Court, which drove the 1979-81 reforms. |
| Lansdowne Commission (1941) | commission or official report | 1941 | Cited for its advice against recognising black trade unions as communist-manipulated. |
| Industrial Disputes Prevention Act 20 of 1909 and Railway Regulations Act 13 of 1908 | legislation gazette | 1908-1909 | Used to show the first strike ban and the first general labour-relations statute, with its notice, conciliation and moratorium provisions. |
| Mines and Works Act 12 of 1911; Native Labour Regulations Act 15 of 1911; Native Land Act 27 of 1913; Natives (Urban Areas) Act 21 of 1923 | legislation gazette | 1911-1923 | Used to show the colour bar, the ban on strikes by blacks, land reservation and the control of black labour in the early segregation period. |
| Industrial Conciliation Act 11 of 1924 and its amendment (Act 24 of 1930), the consolidated ICA of 1937, and the Wage Act 27 of 1925 | legislation gazette | 1924-1937 | Used to show statutory recognition of unions, the exclusion of blacks from the definition of 'employee', and the dual system of industrial relations. |
| Industrial Conciliation Act 28 of 1956 (later Labour Relations Act) and amendments of 1979-1991 | legislation gazette | 1956-1991 | Source for the racial definition of 'employee', the ban on multi-racial unions, the freedom of association and anti-victimisation provisions (ss 66, 78), the Wiehahn-era amendments and the 1988 unfair labour practice regime. |
| Apartheid-era security and segregation statutes (Suppression of Communism Act 44 of 1950, Native Labour (Settlement of Disputes) Act 48 of 1953, Bantu Labour Regulations Act 70 of 1973, Internal Security Act 74 of 1982, 1961 and 1983 Constitutions, BCEA 3 of 1983) | legislation gazette | 1950-1983 | Used to show how statutes suppressed, divided and channelled black unionism through works committees and meeting bans. |
| Labour Relations Act 66 of 1995 and Government Gazette 1692 (10 Feb 1995), Cheadle Task Team recommendations; 1993 interim and 1996 Constitutions; later labour statutes (BCEA 75 of 1997, EEA 55 of 1999 etc.) | legislation gazette | 1993-2002 | Used to trace the post-1993 constitutional and statutory protection of freedom of association and union rights. |
| Laboria Minutes (14 September 1990) and Labour Relations Amendment Act 9 of 1991 | union or movement records | 1990-1991 | Establishes the tripartite agreement to repeal offensive provisions of the 1988 amendments, later enacted in law. |
| South African case law, including Industrial Court decisions (e.g. Mazibuko v Mooi River Textile; MAWU v Transvaal Pressed Nuts Bolts & Rivets) and Ex parte Minister of Justice: In re R v Gerstner 1930 AD 420 | commission or official report | 1930-1996 | Used to show how the Industrial Court introduced fairness and ILO standards, and how judges read the wage legislation. |
| ILO Conventions No 87 (1948) and No 98 (1949), ILO Constitution, Declaration of Philadelphia, 1998 Declaration, CFA Digest and General Surveys | international trade or finance data | 1919-1998 | Provides the international legal standards against which freedom of association is analysed and against which South African law is measured. |
| International and regional human rights instruments and case law (UDHR, ICCPR, ICESCR, European Convention, ESC, American Convention, ACHPR, NEPAD/APRM documents; ECHR and African Commission cases) | legislation gazette | 1948-2004 | Used in a comparative legal analysis of how foreign and international law protects freedom of association. |
| Secondary labour-law and labour-history literature (Brassey Employment and Labour Law; Finnemore & Van der Merwe; Jones Collective Bargaining in South Africa; Bendix; Van Jaarsveld & Van Eck; Coetzee) | secondary literature compilation | 1961-2003 | Supplies nearly all of the historical narrative of unions and statutes, for example the formation of unions, strikes, SACTU, TUCSA and the 1973 strikes. |
| Newspaper report: Louw I 'Labour Federation threaten to Strike over the Anti-terror Bill', Sowetan, 27 February 2004 | newspapers periodicals | 2004 | Source for COSATU's 2004 opposition to the Anti-Terror Bill and its threat to strike. |
Inference¶
Quantification: None.
Doctrinal and legal-historical narrative, supplemented by comparative description of foreign and international law. Claims are built from the text of statutes, commission reports and case law, interpreted through secondary literature, with no systematic empirical data or causal identification.
Key claims¶
| Claim | Basis | Strength |
|---|---|---|
| The Industrial Conciliation Acts of 1924 and 1956 created a racially dual industrial relations system that excluded African workers from the definition of 'employee' and from registered unions, industrial councils and conciliation machinery. (p. 25) | Statutory text of the ICA 1924 and 1956 and the Botha Commission report, read through Brassey and Finnemore & Van der Merwe. | Partial data |
| The Botha Commission (1951) recommended recognising but tightly controlling black unions, and its recommendations led to repressive legislation (the Suppression of Communism Act and the 1953 and 1956 Acts). (p. 28) | Botha Commission report UG 62 of 1951 (paragraph citations) and the statutes themselves, read through Brassey. | Partial data |
| Black workers were not barred from forming unregistered unions, which were formed on a fairly large scale but lacked legal recognition and enforceable agreements. (p. 31) | Statutory exclusion in the ICA 1956, as described in Jones (1982) and footnote 164. | Illustrative or anecdotal |
| The 1973 strikes demonstrated black workers' power and prompted independent union organisation; international pressure and skills shortages then led to the Wiehahn Commission (1977-79) and the integration of labour law. (p. 32-33) | Wiehahn Commission reports and the 1979-1981 amendment Acts, with secondary literature (Finnemore, Roos, Pienaar). | Illustrative or anecdotal |
| The Wiehahn reforms and the Industrial Court extended freedom of association to all employees, produced rapid growth in black union membership and incorporated ILO standards into South African law. (p. 34) | Wiehahn reports, the 1979-1991 amendment Acts and Industrial Court decisions listed in the endnotes; no membership figures are given. | Partial data |
| The 1988 Amendment Act and the later Laboria Minutes negotiations show that apartheid-era protections of association were partial: they excluded public sector employees, domestic servants and farm labourers, and were reformed only after tripartite talks in 1990. (p. 37-38) | Text of the 1988 Labour Relations Amendment Act and the 1990 Laboria Minutes, read through Du Toit, Dekker and Brassey. | Partial data |
| The post-1993 constitutional and LRA 1995 order brought all employees under one system of industrial relations, drawing on ILO Conventions 87 and 98 and on tripartite negotiation in NEDLAC. (p. 69) | Interim and final Constitutions, the Cheadle Task Team report, LRA 66 of 1995 and ILO instruments. | Partial data |
The author's caveats¶
The authors do not discuss limits of data. They state that the periods of colonial and apartheid history are treated briefly 'due to space constraints' and describe the approach as 'legal and theoretical, but also empirical, historical and comparative'.
Gaps in the evidence¶
The argument about the exclusion and growth of black unionism rests on statutes and secondary literature, with no quantitative evidence on union membership, strike incidence, registered versus unregistered unions, or the enforcement of the Acts. Archival records (Department of Labour files, Industrial Council minutes, union records, Industrial Court records) and official union registration and strike statistics existed at the time and could test claims about the effects of the legislation. Claims about employer behaviour, state strategy (for example the secret sponsorship of UWUSA) and union responses are asserted from single secondary sources, and oral histories or company records would strengthen them.
Replicability: Not applicable.