Interpretation of English Used In The Labour Relations Act Of 1995

In accordance with the Constitution of the Republic of South Africa of 1993 (Interim Constitution) and the Constitution of the Republic of South Africa Act of 1996, the 11 official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

In addition, the Pan South African Language Board is required to promote the Khoi, Nama and San languages, sign language and ensure respect for languages used by communities in the RSA including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu, Urdu as well as Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

The National Government may use any of the official languages for the purpose of governing provided at least two of the official languages are used. In accordance with the Constitution, the President is required to assent and sign each Bill passed by Parliament. Once signed, it must be published promptly and takes effect when published, or on a date determined. The signed copies of all Acts of Parliament, after publication, are entrusted to the Constitutional Court for safekeeping.

The Bill of Rights in the Interim Constitution of 1993 and the 1996 Constitution provided for a number of labour relations rights and required that national legislation be enacted to provide for collective bargaining and related matters as well as giving effect to the obligations incurred by the RSA as a member state of the International Labour Organisation (ILO).

Tito Mboweni was appointed Minister of Labour in the first post-1994 election Cabinet of President Nelson Mandela. Mboweni proved to be an energetic Minister who soon appointed a task team to compile a draft Act to serve as the basis for the negotiation of a new Labour Relations Act by the social partners in the National Economic and Labour Development Council, known as NEDLAC. The social partners being government, organised labour (mainly COSATU) and business initially as Business South Africa (BSA) now Business Unity South Africa (BUSA).

The task team was constituted of South African as well as International experts on labour relations under the leadership of Prof Halton Cheadle, a prominent legal academic. The team produced a proposed draft Act in English and serious negotiations at the level of the Labour Market Chamber of NEDLAC commenced. The draft Act was compiled in a way to achieve certain outcomes. It was like ordering a meal from a menu with only egg dishes, either fried, boiled, poached or scrambled, it was always going to be eggs unless you were fortunate enough to be served an omelette.

After the protracted negotiations were concluded, the drafting processes commenced. A number of important innovations were introduced such as not having the definitions at the beginning but at the end of the Act. Prof Cheadle was adamant that the Act had to be written in ‘user friendly’ English by having the documentation scrutinised by a Canadian exponent of ‘user friendly’ English.

When Julius Caesar landed in Britain, nearly two thousand years ago, English did not exist. Fifteen hundred years later, when William Shakespeare was at his prime, English was the native speech of between five and ten million Englishmen. He used just under 20 000 different words in his plays, 12% of the words of the then English vocabulary. Today, English is widely used by an estimated one billion people but fewer than half of those use it as a first language. English at the end of the first decade of the twenty-first century is more widely used than any other language has ever been. It has become the language of the planet, and the first and only global language.

More astonishing is that while Elizabethan English consisted of approximately 150 000 words, modern English now records 1 022 000 words with 8 000 added every year –excluding those originating from Peter de Villiers, the current Springbok Coach!

President Mandela signed the English text of the Labour Relations Act of 1995 on 29 November 1995 and it became law on 11 November 1996. Subsequently, the Act has been amended five times. Section 197 was substituted by a new Section 197 during 2002.

Despite being written in ‘user friendly’ English, the interpretation of certain of the words used in Section 197 became a major and costly dispute in the Courts. Section 197 applies in cases of “the transfer of a business by one employer to another employer” with the emphasis on the word “by”. South African Airways (SAA) during 2000 outsourced some of its operations to another employer on a 10 year contract basis which it was entitled to do under certain circumstances. SAA decided to terminate the contract before the 10 year period was up but indicated it was not prepared to give assurances of continued employment to the affected employees.

The matter then went to the Labour Court when the judge found for SAA on the basis that Section 197 did not deal with employees transferred “from” an employer. The matter was then appealed to the Labour Appeal Court by the Trade Unions representing the affected employees. The Labour Appeal Court upheld the appeal and felt that in the spirit of the Constitution “by” also means “from”. The opposing view was the Labour Appeal Court had overstepped the mark by changing the meaning assigned to a statute by Parliament and the matter was appealed in the Supreme Court of Appeal.

In a ruling, the Supreme Court of Appeal on 11 January 2011 overturned the finding of the Labour Court of Appeal and indicated “by” means “by”. Does this judgement place an obligation on the Courts regarding the significance of interpreting words in whatever language the statute is written?

The irony is that the Minister of Labour has already indicated an intention to have the wording of Section 197 of the LRA amended to suit the outcome desired by the Trade Unions. The Department of Labour on 17 December 2010 published a number of proposed amendments for public comment. Some of the proposals are obviously aimed at satisfying COSATU but could be open to challenge. What is of concern is that some of the proposals are poorly written. In this regard the Department Labour has “egg on its face”.

The Department of Labour is having a public consultation forum on its proposals between 10:00 and 13:00 on Tuesday, 25 January 2011 at the Tropicana Hotel, Durban.

Pieter Rautenbach