Analysis: Understanding Workplace Social Justice Within the Constitutional Framework

• Jurisdiction: South Africa
• Citation: (2016) 28 SA Merc JL 544
• Date: 20 August 2019
• Published date: 20 August 2019
• Author: Dennis Matlou
• Pages: 544-562

Analysis

UNDERSTANDING WORKPLACE SOCIAL

JUSTICE WITHIN THE CONSTITUTIONAL

FRAMEWORK

DENNIS MATLOU*

Advocate of the High Court of South Africa

Johannesburg

I INTRODUCTION

This analysis seeks to contribute towards a practical understanding of

the idea of social justice as it applies or ought to apply in our daily labour

relations. Section 1 of the Labour Relations Act 66 of 1995 (‘the LRA’)

declares its goal to promote social justice.

The stipulated goals of the LRA are indicative of the legislative

intention to go further than merely stipulating rights which must be

claimed, and enforced. ‘The professed aims disclose rather that the LRA

is intended to be an instrument of social change aimed, in particular, at

purging the labour dispensation of past inequalities and injustices, and

extending democracy into the economic sector. It is in that spirit that the

specif‌ic provisions of the LRA must be read’ (Grogan, Collective Labour

Law 2 ed (Juta 2014) 16).

The focus of this analysis is the architectural framework created by the

LRA to enable the advancement of social justice. Further, the question of

how the notion of social justice manifests itself differently across the

labour landscape is scrutinised. Moreover, the analysis illustrates

examples of the successful management of workplace social justice.

The analysis also provides a snapshot of the events of 16 August 2012

at the Marikana platinum mine. This serves to demonstrate the relation-

ship between social justice, economic development, and labour peace. It

illustrates the result of an unfortunate, but epic, breakdown of the policy

of social justice. It is concluded that the development and promotion of

* BProc (SA) LLB (Natal, Pietermaritzburg); Certif‌icate LDRP (Stellenbosch). I thank the

peer-reviewers for their invaluable assistance through comments and criticisms of my initial

draft contribution. I remain responsible for any shortcomings in this contribution.

544

(2016) 28 SA Merc LJ 544

© Juta and Company (Pty) Ltd

social justice should be high on the agenda for courts, lawyers, academics

and other role players in the social justice project.

II DEFINING ‘SOCIAL JUSTICE’ IN THE LABOUR

CONTEXT

The term ‘social justice’ is not def‌ined in the LRA.

Hlalele (‘Psychosocial support for vulnerable rural school learners: In

search of social justice!’ (2012) 10(2) Journal for New Generation Sciences

67, 73) writes:

‘As is the case with many other social concepts, social justice has varied and

complex def‌initions. Among these, there exist common threads that hold

the concept together, and give it shape and identity ... It can therefore be

accepted that a general def‌inition of social justice is hard to arrive at and

even harder to implement. In essence, social justice is concerned with

equal justice, not merely in the courts, but in all aspects of society. ... Social

justice supports a process built on respect, care, recognition and empathy’.

Social justice does not lend itself to a precise and absolute def‌inition.

However, it would not be controversial broadly to state that social justice

means that every citizen of the Republic of South Africa is entitled to at

least some or other form of fair treatment under the law. For purposes of

labour law, social justice would include the realisation by every worker

of their labour rights created under the LRA. In South Africa, in the

context of our history of political and legal exclusion where not all

people were entitled to fair treatment under the law, the idea of social

justice is eminently important.

In Government of the Republic of South Africa v Grootboom 2001 (1) SA

46 (CC) 53B–C the court emphasised that the attainment of social

justice and the improvement of the quality of life for everyone is a key

constitutional requirement. The court highlighted that the extent of the

state’s obligation to attain social justice for all is based on the state’s duty

to take reasonable legislative and other measures to achieve progressive

realisation of social justice within available resources.

Van der Walt (‘A South African reading of Frank Michelman’s theory

of social justice’ (2004) SAPR 253, 254) states that Yacoob J reminds us

that much still needs to be done to attain social justice through reform

and transformation. Yacoob J spoke words which are particularly

relevant to the discussion

‘with each dispute which we ensure is appropriately managed, appropri-

ately handled, with each case with which we treat both sides with respect

and care, ... we make a contribution to the very survival of our society ...’.

(Justice Yacoob (CCMA CPD Seminar, December 2006).

UNDERSTANDING WORKPLACE SOCIAL JUSTICE 545

© Juta and Company (Pty) Ltd