The equitable foundations of South African labour law: an historical and comparative study

[摘要] From the dawn of Western civilization, philosophers and jurists grappled with thenature and role of equity in jurisprudence. The Aristotelian theory of equity, asexpounded in the Nicomachean Ethics, eventually emerged as the enduringequity paradigm in Western juridical thought. Aristotle taught that equity is aninherent and indispensable part of law. Law can never exist without, or ignoreequity.However, even Aristotle and his followers admitted that the notion of equity isfraught with difficulty, hence they never provided any definition of equity. ToAristotle, it sufficed to state that equity was an inherent part of the virtue ofjustice, to be applied where law in the strict sense failed, such application alwaysto be according to the circumstances of each case.The Roman jurists eagerly embraced the Aristotelian paradigm, regarding equityas a virtus or virtue - the virtue of living honestly, giving everyone his due, andcausing injury to nobody.The Greco-Roman virtue theory of fairness aimed at the ideal of humanperfection. Equity involved not simply the performance of objectively existingduties, 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. Unlikelaw in the strict sense, equity was a matter best left to judicial discretion. Thereis a need for equity as the Legislator cannot by means of antecedent statute ofgeneral application provide fair solutions to the infinite variety of cases thatpresent themselves for adjudication on a daily basis. In such situations, theequitable judge should consider and adjudicate the case before him, taking intoaccount all relevant circumstances. Cicero, the Roman jurist, handed down a well-known adage to posterity, namelysummum ius summa iniurie - the highest or best law often allows for theworst forms of injustices or unfairness.Hugo Grotius attached great significance to the conscienability attribute offairness. He emphasized that the judge takes an oath of office to the effect thathe 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 aconscionable judgment was a reasoned judgment. Already in the 13th centuryThomas Aquinas, the prime authority for Grotius and others in this regard, wrotethat conscience was a judgment of reason.Influenced by the Biblical doctrine of the Fall of Man, the Roman Dutch juristsrecognised the fact that at times, the reason of man was a sullied or muddledreason, hence they insisted on recta ratio, or sana ratio - literally sound reason.Sound reason required judicial impartiality, personal disinterestedness, and allother factors which modern labour law would require of a good judge oradjudicator.For various reasons, mainly historical, there is a dearth of direct textualauthority on Roman and Roman Dutch labour law. A complete picture of thelabour law of this epoch is unavailable. By means of textual analysis, criticism,and harmonization, we managed to form a still incomplete but bigger picture ofRoman and Roman Dutch labour law. Our conclusion in this regard is that bothsystems knew a comprehensive equitable labour law regime, much as wecurrently have in South African law under the Constitution, 1996, and the LabourRelations Act, 1995. The common law of labour was therefore not devoid ofequitable principle.So for instance, in sharp contrast with the English and American common law ofdismissal which embraced the principle of employment at will, classical RomanDutch law required lawful and even fair reasons for dismissal. Whereas inEnglish and American Common law a judge was incompetent to inquire into thereasons for dismissal, such reasons being legally irrelevant, the very essence of the judicial function in Roman and Roman Dutch law was to investigate thelawfulness, reasonableness and fairness of such reasons.Unlike English and American common law where a dismissed employee could atmost be awarded token damages in the form of the equivalent of the wage hewould have earned had the notice period been complied with by the employer,the relief for unlawful, unreasonable and unfair dismissal in Roman and RomanDutch law was a substantial relief in the form of damages representing the wagethat 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 ifit violated fairness, good faith or morality.Modern Dutch law built further upon these cornerstones of the common law, andadopted these requirements as the foundations of its most comprehensiveprinciple of employment law, namely the good employer-good employeeimperative.But despite the comprehensive equitable regime which formed the hallmark ofthe common law of labour, unsavoury doctrines such as employment anddismissal at will, forfeiture of wages already earned by some categories ofdismissed workers, indivisibility of labour and token or notice damages wherethe required notice of dismissal had not been given, incrementally infiltratedearly South African labour law through erroneous judicial recognition andapplication. But it was not these doctrines as they appeared in some old Dutchurban placaats and by-laws that served as the sources of judicial inspiration inthis regard. These were specifically disavowed in cases like Spencer. At theearly stages of the development of a unique South African system of labour lawproper, 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 toEnglish law. The prime English statute governing dismissal disputes, namely theEmployment Rights Act of 1996, is the only English piece of legislation makingprovision for the application of fairness, but its field of application is limited tounfair dismissal disputes. The concept of unfair labour practice remains foreignto English law. Equity also remains virtually unknown to American employment law. TheNational Labor Relations Act of 1935 introduced the concept of unfair labourpractice, 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 principleis still in full force in America. Only in 11 States has judicial creativity introducedimplied contractual terms to the effect that good faith and fair dealing shouldgovern the employment relationship. Even this move is relatively feeble, isolatedand quite casuistic, and has made little inroad on employment and dismissal atwill.As indicated earlier, unsavory doctrines such as employment and dismissal atwill, forfeiture of wages earned, token damages in respect of the notice period ofdismissal and the like, were nor derived from Roman Dutch Law, but rather fromEnglish law as described above.Such was the position when the Industrial Conciliation Act, 1956 was amendedin 1979, directly as a result of the Report of the Wiehahn Commission, whichfirst identified the need for a comprehensive equitable regime in South Africanlabour law.As a direct result of the recommendations of the Wiehahn Report, the erstwhileIndustrial Court was also introduced by the 1979 Amendments. There seems tobe a general consensus amongst labour lawyers today that the Industrial Courtperformed pioneering work and that it left a rich jurisprudential heritage ofequity in labour matters. The drafters of the 1995 Labour Relations Act madeample use of this heritage, and rightly so, we submit. But the drafters alsoconsulted foreign legislation. This was a prudent thing to do, even though itseems that some of the textual deficiencies in the 1996 LRA could be tracedback to such legislation. It also appears as though the political and constitutionaljunctures which obtained at the time that the 1995 LRA was drafted, left theirmark on the text of the LRA. It is not an indelible mark however. Although theeventual LRA text was a political and ideological compromise somewhat hurriedlyconstructed, it is still an impressive document.Such deficiencies that still do occur in the text, need to be addressed bylegislative 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 lesserextent, unfair dismissal, resulting in the LRA text not giving adequate expressionto the more general right to fair labour practices as enshrined in s 23 of theConstitution.The jurisdictional conundrum often resulting in forum shopping amongst litigantshas been largely addressed by the Constitutional Court in cases like Gcaba. Thesame applies to the traditional differentiation or discrepancy between the statusand rights of public sector as opposed to private sector employees. However, itis still desirable that the legislature address these issues again and harmonizethem as much as possible with the tenets of s 23 of the Constitution and theguidance given by the Constitutional Court in this regard.Both legs of South African labour law, namely the common law of employmentand the statutory scheme enshrined in s 23 (1) of the Constitution, as giveneffect 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 raisesequity to the sublime status of ultimate yardstick for the resolution of labourdisputes.In this statutory scheme, fairness and fairness alone serves as the finaldeterminant of the fairness of labour practices, including dismissal.The common law has virtually reached a ceiling of development as far asemployment fairness is concerned. S 23 (1) of the Constitution as given effect toby the LRA, 1995, constitutes that ceiling.In SA Maritime the SCA held that the common law cannot be developed to theextent where it recognizes an implied term of fairness in contracts ofemployment. The rationale for this decision was that such development wouldintrude onto the terrain of the statutory scheme, and was therefore not intendedby the legislator. A development of this nature should best be left to thelegislature, the courts argued since SA Maritime. English persuasivejurisprudence such as Johnson v Unisys played a pivotal role in this regard, asit will without doubt do in the foreseeable future.The obvious vehicle to be used by the Legislature for this purpose is appropriateamendment of the LRA. We have noted that although a progressive piece oflegislation, the LRA suffers from many deficiencies in its quest to give effect tothe imperative contained in s 23 (1) of Constitution, namely the right ofeveryone 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 asto 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 inceptionof the Industrial Court, and even prior to that auspicious event, into the natureand role of equity in South African labour law.We subscribe to the view espoused by virtually all labour courts, but especiallythe Constitutional Court, that it seems to be undesirable to provide a definitionof equity or fairness. The nature and role of fairness are dichotomous: on theone hand is fairness a relatively familiar concept in daily use, not only in thelabour courts as such, but in virtually all courts of law. At times, the concept isconsciously and deliberately applied during the course of judicial activity, while itsometimes fulfills its role quietly, unobserved and without any recognition.Fairness is sometimes derissen by sceptics - mostly ignorant - while it is moreoften eagerly embraced by realists, i.e. those who have come to the realizationthat strict legal principle is sometimes hopelessly insufficient for the resolution oflegal disputes, and that equity has an inherently supplementary role to fulfil inall legal practice. Moreover, in labour law such role is not merely supplementary,but pivotal. Unfair labour practice and unfair dismissal disputes are ultimatelyresolved by application of the criterion of equity alone, and nothing else.But despite the healthy disinclination of the courts to provide an attempteddefinition of equity, some theory of equity seems to be steadily developing. Thisfledgling theory is torn between the opposites of strict law and the traditionalneed for legal certainty on the one hand, and the inherent flexibility which is thehallmark of equity on the other. A theory of equity should not be confused with adefinition of equity. In fact the very theory is predicated on the versatility,flexibility and adaptiveness of the notion of equity - attributes not readilyaccommodated by definition.It is for this reason that we have entitled the section of this study dealing withthis theory merely as factors informing equity. This is to emphasize that noattempt is made at all to provide a numerous clauses or closed list of factors tobe taken into account by the presiding official applying equity. In fact such aclosed list will probably never be developed. The labour courts appear to be aliveto the unique opportunity that the open-ended, flexible and indeterminateconcept of equity provides them for the fulfiIIment of the ideal enshrined in s 23(1) of the South African Constitutional, namely fair labour practices.

[发布机构] University of the Free State