The effect of section 43 of the BCEA on employment contracts and legislative protection of minors

• Jurisdiction: South Africa
• Author: Malebakeng Agnes Forere
• DOI: 10.10520/EJC193484
• Published date: 01 January 2016
• Date: 01 January 2016
• Pages: 23-40
• Published By: University of Pretoria

23

The effect of section 43 of the BCEA on

employment contracts and legislative

protection of minors

Malebakeng Agnes Forere

LLM (Essex) PhD (Bern)

Senior Lecturer, School of Law, University of the Witwatersrand

OPSOMMING

Die uitwerking van artikel 43 van die Wet of Basiese Diensvoorwaardes op

dienskontrakte en die statutêre beskerming van minderjariges

Artikel 43 van die Wet op Basiese Diensvoorwaardes belet die

indiensneming van kinders jonger as 15 jaar. Dit is ’n strafregtelike

oortreding om te vereis of om toe te laat dat ’n kind werk verrig wat

onvanpas is vir ’n persoon van sy of haar ouderdom, of wat die kind se

welsyn bedreig. Artikel 43 swyg oor die geldigheid al dan nie van ’n

werkskontrak wat met ’n minderjarige van jonger as 15 aangegaan is. Dit

is van belang om te bepaal indien artikel 43 die gemeenregtelike posisie

verander deur dit ’n kriminele oortreding te maak om die minderjarige in

diens te neem. Die skrywer ontleed die teks van artikel 43 deur ’n

‘purposive approach’ tot wetsuitleg te volg en kom tot die slotsom dat

artikel 43 nie die gemeenregtelike posisie verander nie, op voorwaarde dat

die kontrak aan die vereistes van artikel 43(2) van die Wet voldoen.

1Introduction

In South African law, a minor is any person below the age of eighteen

years.1 However, as far as the capacity to perform a juristic act is

concerned, minority is divided into two groups, namely minors aged

between zero and seven years (infans), and minors aged between seven

and eighteen years (usually referred to as pupilis).2 This paper focuses on

minors aged between seven and eighteen years to the exclusion of the

group aged between zero and seven years. Therefore, any reference to

minors in this paper refers to minors aged between seven and eighteen

years.

Child labour is a dynamic concept in that children are found in a

variety of labour sectors, ranging from the worst forms of labour to soft

employment. In South Africa in particular, children are mostly employed

on farms while others do vacation work and there are those who do worst

forms of labour, which rip them off their education and childhood, and

endanger their lives. Additionally, diseases and illnesses such as HIV/

AIDs have left many families as child-headed households with the result

1 S 7 of the Children’s Act 38 of 2005.

2Christie The Law of Contract in South Africa (2006) 232.

How to cite: Forere ‘The effect of section 43 of the BCEA on employment contracts and legislative protection of

minors’ 2016 De Jure 23-40

http://dx.doi.org/10.17159/2225-7160/2016/v49n1a2

24 2016 De Jure

that children seek employment in order to pursue a living. Equally, in

families where at least one parent is still alive, levels of poverty cause

children to seek employment in an attempt to support the family. The

survey conducted by the South African Department of Human Settlement

for the province of KwaZulu-Natal indicated that 2 808 children, between

the ages of ten and fourteen years, live in child-headed households.3

Countrywide statistics reveal that 44 000 children, below the age of

eleven years, live in child-headed households4 and that there are an

estimated 800000 child labourers in South Africa.5 This number is a

cause for concern. Of course, it must be noted that social grants are

available for these children and that if successful, each child is given

R350 per month (approximately US $25).6 However, given the high cost

of living, the falling Rand against the American Dollar and increasing

food prices, this amount needs to be supplemented. Consequently, the

status of the employment contracts that children, below the age of eleven

years, are concluding need to be assessed.

Against the above background, this contribution seeks to determine

whether section 43 of the Basic Conditions of Employment Act 75 of

1997 (the BCEA), which makes it a criminal offence to employ minors

aged below fifteen years, results in a contract of employment concluded

between a child below the age of fifteen years illegal and, therefore, void.

In essence, this question will address further practical questions on the

minor’s right of recourse to labour institutions and remedies in the

following instances: (a) where a child is not paid wages and wants to

enforce his/her rights in terms of the BCEA; (b) where a child is unfairly

dismissed on grounds of incapacity or misconduct; (c) where a child is

injured in the workplace and eligibility for compensation under the South

African Compensation for Occupational Injuries and Diseases Act 130 of

1993 (the COIDA) is questioned. The scenarios mentioned above are

embedded in the constitutional right to fair labour practice espoused in

section 23 of the South African Constitution of 1996 (the Constitution)

and more so in the Labour Relations Act (LRA),7 which seeks to give

effect to section 23 of the Constitution.8 In all the above-mentioned

situations, can it be argued that the employment contract was illegal and

children are therefore not eligible for remedies under common law, the

BCEA and/or any relevant labour statute? In answering these questions,

the author will begin the analysis by discussing the status of employment

3 KwaZulu-Natal Department of Human Settlement ‘Research on Child

Headed Households’ (June 2010) p 7 available from http://www.

kzndhs.gov.za/Portals/0/docs/Research%20and%20Report/Research%20

Report.CHH2010.pdf (accessed 2015-02-17).

4Idem 8.

5 ‘Child labour in SA still too high’ 2013-08-01 available from http://

www.fin24.com/Economy/Child-labour-in-SA-still-too-high-20130801

(accessed 2015-02-18).

6 Parliament Budget Speech 6 presented to Parliament on 2015-02-24 p 22

available from http://www.parliament.gov.za/content/speech~11.pdf

(accessed 2016-07-11).

7 Labour Relation Act 66 of 1995 (the LRA).

8 S 3 of the LRA; Chirwa v Transnet 2008 4 SA 367 (CC) par 110.