The concept of Labour in South African Law

• Date: 17 January 2021
• Published date: 17 January 2021

Fundamini Vol 26 Issue 1.indb 42 2020/09/07 7:51 AM

THE CONCEPT OF LABOUR IN

SOUTH AFRICAN LAW

LN Maqutu*

ABSTRACT

The

attitude

of

European

invaders

toward

the

African

people

they

encountered

during

the

colonial

conquest

of

South

Africa

has

been

crucial

in

the

formulation

of

law.

This

contribution

undertakes

a

contrapuntal reading o f historic laws perti nent to notions of labour and

its regulation, in order to reveal the import of its orientation to the system

devised.

The discourse on Africans and the manner of their utilisation

as

a

source

of

labour

are

assessed

from

the

text

of

legal

provisions

of the emerg ent Cape Colo ny and the later period of industrial mining

in the Zuid-Afrikaansche Republiek.

From a post-colonial, theoretical

perspective,

the

exploration

expands

the

latitude

of

labour

law

to

incorporate property, mobility, mining and other subsets of law.

A

recount

of

these

early

laws

reveals

that

the

forcible

labouring

of

Africans

has

been

vital

in

the

development

of

colonial

settlements

and ente rprise e ndeavours.

The supp osed wor thwhile modernisation

of

South

Africa

has

been

largely

accomplished

through

the

cruelty

imposed

on

Africans.

Yet

normalised

accounts

advance

concrete

separations, (white) leadership alongside legitimised African servitude.

Fidelity to th at paradigm of t hought demands an either-or r esponse to

historical events (eithe r it was good – a necessary evil – or it was bad),

*

Lecturer, School of Law, University of KwaZulu-Natal.

42

https://doi.org/10.47348/FUND/v26/i1a2

(2020) 26(1) Fundamina 42

© Juta and Company (Pty) Ltd

THE CONCEPT OF LABOUR IN SOUTH AFRICAN LAW

43

without making room for nuanced deliberation. It presumes a capacity

to escape colonial manipulation when interrogating its misdeeds.

However, the formation of that type of thought itself is awed, and has

failed to create the certitudes professed.

Since the founding mythos upon which legal reasoning has been

assembled has rested on the diminution of Africans, continued

delity to the accumulated arrangements of labour and its control is

disturbed by the appraisal in this contribution. The process avoids

validating the simplistic legitimation of labour norms by the controlled

insertion of Africans into colonised spaces – a narrow way of thinking

that encourages the belief that solutions can be found in according

Africans access to the spoils of conquest.

Keywords: Foundational labour norms; African Labour; postcolonial

theory; Cape of Good Hope; Zuid-Afrikaansche Republiek; pass laws;

property laws; mining laws; labour laws

1 Introduction

This contribution endeavours to illustrate how the attitude of

invading colonisers with regard to Africans was crucial in shaping

labour management. It considers the evolution of notions of labour

from the manner of its inscription in South African law throughout

the nineteenth and early twentieth centuries, until 1910. The journey

begins in 1652 with the arrival of the Dutch in the Cape, where

the patterns of the dominant ideology were established. Using a

postcolonial theoretical outlook, the development of an industrial

mining sector, which began in Griqualand West and later extended

to the Zuid-Afrikaansche Republiek (ZAR), is used to chart the

progress of labour and the regulation thereof. In particular, the laws

promulgated to support the extraction of African labour will be focal.1

Moreover, this contribution proposes that labour law encompasses

1 In this study, “African” signies all recalled indigenous peoples, living in

the territories of South Africa, encountered by Europeans upon invasion. It

includes the San, the Khoi, the Xhosa, the Pondo, the Thembu, the Gcaleka,

the Fengu, the Hlubi, the Zulu, the Ndebele, the Bakatla, the BaHananwa, the

VhaVenda, the Bakwena, the Bapedi, the Barolong, the Swazi, the Basotho,

the Batswana, the Shona and many others who were met by Europeans during

incursions inland; it furthermore also includes those labelled as “Native”,

“Hottentot”, “Bushman”, “Kars,” “Native Foreigners”, “aboriginal

African”, and at times “coloured persons” in the laws of the Cape Colony

and of the Zuid-Afrikaansche Republiek (ZAR).

Fundamini Vol 26 Issue 1.indb 43 2020/09/07 7:51 AM

© Juta and Company (Pty) Ltd

LN MAQUTU

44

much more than merely the so-called master-and-servants laws of

old,2 and that the latter should receive much less emphasis in the

study of historical labour regulation, because it did not manage the

bulk of labour at the time. Instead, this contribution also looks at

the prescripts of law regulating, inter alia, personhood, citizenship,

possession or ownership of xed property, civil liberties – such as

free movement, residential occupation and the ability to choose an

occupation or trade – as well as the liberty to travel from place to

place, in order to assess part of the labour law edice at the time. So,

too, the relevant portions of laws regulating the mining of diamonds

and gold deposits from the mid-1800s onward are assessed.

This contribution revisits the shared unequal labour culture so

as to divulge the scale of the alienation wrought.3 It seeks to detect

and highlight the subdued attendance of Africans within the text

of colonial law. Postcolonial theory aids in the analysis of colonial

narrative, through undertaking an interrogation of the multiple

factors and contradictions at hand. Signicantly, the mental

schisms created by colonialism are sought out in the provisions

of law and are given prominence. Irresolvable incongruities are

highlighted as an enabling analytical tool, in order to dissipate

notions of neutrality in the fashioning and implementation of

labour regulations. The uncertainties revealed by the theory are

used to begin to disarticulate the authoritative Grundnorms behind

the ordering of labour relations. Because it seeks to unsettle

what has been presumed settled, it enables the retelling of labour

history in a manner not “premised on the silence of the native”.4 A

disruptive difference is initiated by focusing on African workers, so

that a secondary reading of the concept of labour is presented from

within the colonial manuscript.

The analysis aims to show how the laws operate in a cyclical

two-tiered fashion, which at once disparages and downgrades the

humanity of Africans, while etching concrete methods of maximally

2 Masters and Servants Ordinance 1 of 1841 (Cape); Masters and Servants Act

15 of 1856 (Cape); Masters and Servants Law 13 of 1880 (Transvaal); Master

and Servant Ordinance 2 of 1850 (Natal).

3 Shohat argues that “[f]or communities which have undergone brutal ruptures,

now in the process of forging a collective identity, no matter how hybrid that

identity has been before, during, and after colonialism, the retrieval and

reinscription of a fragmented past becomes a crucial contemporary site for

forging … identity”; see Shohat 1992: 109.

4 Said 1994: 99.

Fundamini Vol 26 Issue 1.indb 44 2020/09/07 7:51 AM

© Juta and Company (Pty) Ltd