On the 6th of September VDMA attended the 2nd regional congress of the African Labour Law Society (“ALLS”), hosted at Century City Conference Centre in Cape Town. We were in great company with all the major law firms, not only from South Africa, but from around the continent. Also, in our company were representatives from the Conciliation for Commission, Mediation and Arbitration (“CCMA”), the International Labour Organisation (“ILO”) and a number of delegates from the 21 countries who host members of the ALLS.
The program committee of the ALLS carefully selected 5 (five) thought-provoking and current topics for discussion namely, dispute resolution, gender discrimination and harassment, the informal economy, migrants during crisis and the impact of international norms on African countries. Each topic was explored at length by the inspiring speakers.
All delegates present, including the representatives of VDMA, engaged critically in discussing and understanding the contemporary issues relating to employment and social security matters, not only in South Africa but the rest of the continent.
The first topic for discussion was Labour Dispute Resolution (“LDR”) and all 3 speakers spoke passionately and openly about Alternative Dispute Resolution (“ADR”). Judge President of the Lesotho Labour Court, Fumane Khabo (Lesotho), spoke enthusiastically about the important role that mediation plays in the ADR environment. Notably she said that the word conciliation comes from the Latin work “conciliare” meaning to unite and occupy a middle position. This is at the core of the ADR process and the ultimate control of the outcome rests with the parties. In the African context, this method of dispute resolution is perceived to be the most effective, because it is an efficient and low-cost mechanism to resolve disputes. A notable trend in each of the speeches, which resonated throughout this particular topic, was that the CCMA in particular, is placing emphasis on dispute prevention, which is the ultimate aim and supersedes the drive to conciliate and mediate. Wilbur van Niekerk (South Africa) (“Van Niekerk”) a commissioner from the CCMA was particularly one of the most passionate speakers of the day, who discussed LDR with an emphasis on the value of mediation and conciliation. He took the delegates through some interesting statistics during the year 2017/2018 in the CCMA. The impact of conciliation on the case load in these years was remarkable. The number of referrals to the CCMA was a staggering 186 902 and the settlement rate in all processes was a remarkable 74%, with only 10 351 arbitration awards issued. These numbers undeniably speak to the effectiveness of the process of conciliation in the CCMA. Van Niekerk also discussed the statistics based on referrals by type. Prominently 75% of the referrals to the CCMA are unfair dismissals, with 10% being unfair labour practices and the remainder being split between disputes pertaining to severance pay, matters of mutual interest, capacity building and collective bargaining. Van Niekerk left the delegates with a remarkable statement, which many of us found particularly relevant in the practice of LDR, he quoted Clem Sunter, Mind of a Fox: “Your interest in hunting would rely entirely on which end of the gun you find yourself”. Van Niekerk adapted the quote to illustrate the public’s thoughts on ADR, his adaptation was powerful and thought-provoking: “Your interest in conciliation and mediation would rely entirely on which end of the dispute you find yourself.”
Sexual harassment in the work place was the next topic up for discussion. A subject which is very relevant today, not just on the continent but around the world. Each speaker made a point to highlight the relevance of the subject matter in the work place. Lizle Louw (South Africa) from Edward Nathan Sonnenbergs talked in particular about section 60 of the Employment Equity Act and the impact that it has had on today’s jurisprudence. She highlighted 3 (three) recent cases which were adjudicated on the topic, namely Campbell Scientific Africa Proprietary Limited v Simmers and Others  1 BLLR 1 (LAC); Liberty Group Limited v M (JA105/2015)  ZALAC 19; (2017) 38 ILJ 1318 (LAC);  10 BLLR 991 (LAC); and Chowan v Associated Motor Holdings (Pty) Ltd and Others (22142/16)  ZAGPJHC 40. The topic was also explored in the context of the Nigerian and Malawian legal framework, where progress is being made to equalise the playing field in the work place. Doctor Ashimizo Afadame-Adeyemi (Nigeria) spoke on victims, perpetrators and facilitators. In Nigeria, 2 (two) factors must be present for sexual harassment to occur. Firstly, there must be a quid pro quo, for example when there is a job benefit such as a pay rise, promotion or even continued employment and such is made conditional on the victim acceding to the demands to engage in some form of sexual behaviour and secondly, a hostile working environment in which the conduct occurs, creates conditions that are intimidating or humiliating for the victim. This definition and language is restrictive and onerous on the victim, however strides are being made within Nigeria and Malawi to rectify the workplace environment in which the sexual harassment occurs.
After lunch, the next topic up for discussion was the informal economy, which was touched on by speakers from South Africa, Nigeria and Zimbabwe. The figures and statistics were astounding. Pat Horn (South Africa), who spoke passionately on the topic on behalf of South Africa, focused her talk on the ILO’s Recommendation 204 (“Recommendation”) and the transition to appropriate and inclusive legal policy. She spoke on the self-organising nature of informal workers, who want legal protection, social security and right to have their own elected democratic representatives, which are essentially elements of formalisation. The discussion by all speakers on this topic talked to the benefits formalisation would have on the workers and the governments in which they reside. The recommendation acknowledges that most people enter the informal economy not by choice, but as a consequence of a lack of opportunities in the formal economy and in the absence of other means of livelihood. The recommendation recognises that informality has multiple causes, including governance and structural issues, and that public policies can speed up the process of transition to the formal economy, in a context of social dialogue. Interestingly 30-40% of South Africa’s labour market is informal, which trivial in comparison to a staggering 86.1% statistic in neighbouring African countries. Doctor Pamhidzai Bamu (Zimbabwe), who was also the master of ceremonies for the day, discussed extending occupational health and safety protection to informal workers. She noted that the majority of the informal sector is dominated by the most vulnerable group of workers, namely women. In closing the transition from the informal to the formal economy is essential to achieve inclusive development and to realise decent work for all.
The fourth topic up for discussion was the migrant crisis faced by the continent. Doctor Marius van Staden (South Africa), spoke on perspectives from Southern Africa. He critically analysed the strengths, weaknesses, threats and opportunities that come with the crisis on migration. The key drivers of migration are political instability in the country of origin, developmental challenges, poverty, economic and socio-economic factors. Most migrants in Africa are vulnerable groups such as women and children, unsurprisingly the majority of these migrants find themselves in the informal sector, with little regulation and protection. Professor Letlhokwa Mpedi (“Mpedi”) (South Africa) noted that the way forward is a reactive and proactive approach, respect and protection of human rights and good political and economic governance. Modernisation of current legislative policy framework is an important step to manage the crisis on migration. The term crisis migration should not be construed to be a crisis in the host country, whereas it should rather be seen as a crisis in the origin country, which drives its people away due to a number of factors. Progressively, some African countries have bi-lateral labour agreements in place, which regulate and facilitate training and education. Kenya and Ethiopia for example have a visa waiver agreement, which facilitates the migrant workers and benefits both countries respectively. Overall, it was noted that the crisis migration in Africa is largely man-made and must be addressed decisively through unilateral, bilateral, multilateral agreements, as well as proactive measures. If we work on regulating the crisis the migrants can be agents for development in their host and original countries.
Last, but certainly not least was Doctor Joni Musabayana (“Musabayana”) who spoke on the ILO and the impact of the (non-binding) recommendations on its member countries and the continent at large. His focus was the impact of international norms on African labour relations. South Africa has recognised and ratified 23 recommendations, however as a member country you are expected to comply with all the ILO’s recommendations even if you have not ratified the cores. He noted that currently, the greatest hurdle faced by the ILO is political wilful non-compliance, however supervisory mechanisms are the best way to drive change and compliance with the cores. Musabayana spoke of a time one day where he believes and hopes that he can stand in front of people like all delegates present on the 6th of September and talk on the influence of African labour law on the international labour market. He was positive about the labour environment in Africa, whilst still recognising its pitfalls.
The feast of knowledge was followed by a wonderful cocktail evening, where delegates were heard chatting about the progress African labour law is making and the promise for development. The conversation and wine flowed, the networking opportunities were plentiful and most importantly the room buzzed with hope for the continent.
VDMA was privileged to be in attendance and part of the conversation on labour law and as Mpedi said during his presentation: opportunity, change and growth in the African context of labour law is
N O W H E R E.
12 September 2018