1 INTRODUCTION
4.4 Labour dispute resolution between 1994 to the present
The early 1990s ushered a new dispensation in RSA marking an end to the years of political oppression under the scourge of apartheid rule. The year 1994 for instance saw a new democratically elected government under President Nelson Mandela
969 Budeli (2007) 70 970 Act 28 of 1956
971 Industrial Conciliation Amendment Acts 94 of 1979 and 95 of 1980 972 Act 57 of 1981 973 Act 28 of 1956 974 Act(s) 51 of 1982; 2 of 1983; 81 of 1984; 83 of 1988 and 9 of 1991. 975 Budeli (2007) 70 976 Act 83 of 1988 977 Budeli (2007) 70 978 Act 83 of 1988 979 Budeli (2007) 70
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formed widely regarded as a miracle.980 At the core of RSA's democratic dispensation
is that it ushered in the Constitution of the Republic of South Africa, 1996 herein (“the
1996 Constitution”)981 which comprises a Bill of Rights,982 in which a variety of
fundamental rights are enshrined for all South Africans.983 A deep-rooted component
of the 1996 Constitution984was the installation of rights such as the right to fair labour
practices, freedom of association, to collectively bargain and the right to undertake
strike protest action,985 a marked difference from the previous era. Labour legislation
that gives effect to these rights was developed and formalised.986RSA rapidly enacted
four important components of labour legislation in succession, namely: the LRA,987the
Basic Conditions of Employment Act herein (“the BCEA”);988 the Employment Equity
Act herein (“the EEA”)989 and the Skills Development Act herein (“the SDA”).990 These
legislative enactments completely transformed the manner labour relationships are handled in RSA to date, and are collectively touted the most comprehensive labour
legislative arrangement in the world.991
In some respects, ADR in South Africa has attained notable milestones towards an efficient body especially when it comes to enacting legislation that supports its
adoption and use. The enactment of a Labour Relations Act992 ushered in a new labour
dispute settlement regime different from that during the apartheid era which did not recognize the rights of native Africans. South Africa installed an independent
regulatory body – the CCMA - to dispense with ADR in labour disputes.993 South Africa
is highly commended for its efforts in employing the services of ILO in establishing an independent ADR body – the CCMA - in 1996, training of its first 100 full time and 300 part- time conciliator’s and arbitrators and over 300 support staff as well as establishing an electronic case management system that deals with over 100 000 cases each year.’994 980 Swanepoel et al. (2008) 45 981 Ferreira (2004) 76 982 Act 108 of 1996 983 Ferreira (2004) 76 984 Act 108 of 1996 985 Section 23 Act 108 of 1996 986 Ferreira (2004) 76 987 Act 66 of 1995 988 Act 75 of 1997 989 Act 55 of 1998 990 Act 97 of 1998
991 Venter, Grossett, and Hills Labour relations in South Africa (2003) 148 992 Act 66 of 1996 (As Amended)
993 Section 113, Act 66 of 1996 (As Amended) 994 Steadman (2011) 43
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Compared to the National Party which institutionalised and solidified apartheid and deepened its exclusion of native Africans from participation in the labour movement that would assert their rights, the post 1994 government achieved much in installing
industrial democracy in South Africa.995 Considering that the Industrial Conciliation
Act996 enactments under apartheid which introduced Industrial Councils and
Conciliation Boards as dispute resolution instruments among other things excluded
native Africans and public sector workers from the definition of an “employee”997 the
LRA is an important change of direction in the dispute resolution space. Having an independent body that dispenses with conciliation and arbitration of disputes ushered a new wave of industrial democracy. This is an important milestone according to this study. ADR processes in South Africa are responsive and have achieved targets in resolving disputes through conciliation and arbitration proceedings. The LRA amendments for instance introduced section 143 (3) which gave the CCMA director power to certify arbitration awards so as to make them enforceable. This took away the need to always convert arbitration awards into orders of court to make before
section 143 was enacted.998Such a responsive enactment has added to steps that
enhance ADR efficacy as far as enforcement of arbitration awards is concerned. It is however discernible from the discussions in this chapter that ADR efficacy has been curtailed by those that seeks to use review of arbitration awards in the Labour Court and prescription period as ploys to evade responsibility. The Constitutional Court
however ruled that the Prescription Act999did not apply to arbitration awards and could
not be used as a delay mechanism by those that sought to evade responsibility.1000A
landmark ruling of Justice Zondo and Justice Jafta in the Myathaza matter”1001 settled
the issue and made it difficult for employers to run to the use of prescription arguments as well as review proceedings of arbitration awards through the Labour Court to evade liquidating claims or reinstatements.
995 Swanepoel et al. (2008) 40 996 Act of 1924
997 Swanepoel et al. (2008) 38
998Section 143 (3), Act 66 of 1995 (As amended in 2014) 999 Prescription Act 1969
1000 Par 142, [2016] ZACC 49, [2017] 2 BLLR 213 (CC) 1001 Ibid
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Other aspects that negatively impacts on ADR’s ability to efficaciously dispense with matters in CCMA is its inability to determine whether an employment relationship existed between the parties in dispute before issues in dispute can be determined. It
causes unnecessary delay. Further, the Act1002 does not specify the minimum
qualifications required for persons who act as commissioners and in certain circumstances inability to have specialised knowledge among commissioners are matters this study believes impinges on RSA ADR ability to be efficacious. This study considered whether ADR in South Africa was actually achieving time efficiency expectations. The study established that CCMA reported 74% success rate in
settlements in the 2015/2016 period.1003 This study concurred with a reasoned position
by Venter & Levy1004 who observed that CCMA was not accurately reporting. CCMA
piles arbitration settlements together with conciliations to suppose that together they reflected settlement success. Conciliations by their nature are a result of the effort of the parties. CCMA ought to have indicated success attributed to them in arbitrations as they have power to make decisions, which power they do not have when it comes to conciliations. Conciliations are settled by the parties with minimum effort of
commissioners. When looking closely into arbitration awards, Venter & Levy1005
observed that about 50% (12,730) of the 25,460 matters resolved by way of arbitration are not enforced but rather dishonored by employers. Such a state of affairs reflects an unfavorable situation when it comes to enforcement of awards. This study agrees
with Savage1006 view that awards and claims must be capable of being enforced by the
parties. Without functional enforcement mechanisms in place, the constitutional assurance of the right to fair labour practices and the protection of the law risks being
significantly undermined if not made meaningless.’1007 South Africa still faces the
challenge of enforcement of arbitration awards especially the attitude of some employers as they seek to evade responsibility. By the strength of the foregoing arguments this study finds that ADR in labour dispute resolution is still far from being efficacious in South Africa. There are still gaps especially in enforcement that need to be resolved as seen from the foregoing discussions.
1002 Act 66 of 1996 (As Amended)
1003 CCMA Annual Report 2015-2016 (2016) 31 1004 Venter & Levy (2013) 45
1005 Venter & Levy (2013) 45 1006 Savage (2013) 46 1007 Savage (2013) 46
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4.5 Review of the Efficacy of ADR as a Labour Dispute Settlement System in