COPYRIGHT AND CITATION CONSIDERATIONS FOR THIS THESIS/ DISSERTATION

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1 COPYRIGHT AND CITATION CONSIDERATIONS FOR THIS THESIS/ DISSERTATION o Attribution You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. o NonCommercial You may not use the material for commercial purposes. o ShareAlike If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. How to cite this thesis Surname, Initial(s). (2012) Title of the thesis or dissertation. PhD. (Chemistry)/ M.Sc. (Physics)/ M.A. (Philosophy)/M.Com. (Finance) etc. [Unpublished]: University of Johannesburg. Retrieved from: (Accessed: Date).

2 AN ANALYSIS OF THE INTERRELATIONSHIP OF INTERPRETATIVE APPROACHES BETWEEN LABOUR LEGISLATION AND THE TRANSFORMATIVE VISION OF THE CONSTITUTION by Dagan James Rego Submitted in partial fulfilment of the requirements for the degree Masters of Law in the field of Labour Law at the University of Johannesburg Supervisor: Mr MJ van Staden January 2015

3 DECLARATION I hereby declare that the minor dissertation submitted for the LLM degree at the University of Johannesburg, apart from the sources recognised, is my own work and has not been submitted to another university or institution of higher education for degree purposes. I further declare that my academic work is in line with the Plagiarism Policy of the University of Johannesburg which I am familiar with. I declare that the work presented herein is authentic and original unless clearly indicated otherwise and in such instances full reference to the source is acknowledged. Dagan James Rego January 2015

4 ABSTRACT In this minor dissertation the author argues that the Constitution will fail to uphold its own fundamental values if the rights and obligations which it enforces remains stale and outdated. A supreme body of law needs to be one which is breathing and alive, and which may adapt to fundamental changes in society. In turn, it is will be suggested that, if the Constitution remains ineffectual, labour law (which seeks to uphold its values and vision) will in turn become ineffectual. The minor dissertation will therefore consider the following pertinent question: Will the inability of the judiciary to interpret labour law in a manner that furthers the fundamental values in the Constitution result in such legislation becoming ineffective? It will be submitted that in order to promote economic and labour development one must be mindful of the social fluctuations present in light of a constitutionally supreme state. It is also stated that, in order to avoid a deadlock of complicated and outdated labour legislation which becomes inflexible, the Legislature must allow the Judiciary to develop such law to the extent that is necessary for its continued existence insofar as it complies with the Constitution. Without a strong and adhesive method in developing labour practice, social, economic and technological advancements will fail. Labour legislation must therefore be adaptive and flexible. The judiciary must therefore be adaptive and flexible in their own application of such law. In turn the Constitution is theoretically adaptive too, and its premise is achieved through the promotion of effective labour legislation, specifically.

5 CONTENTS 1. Introduction Constitutional supremacy Constitutional framework The interpretation of statutes and the Constitution, including a brief view of the development of interpretative methods in America The position of interpretation in a legislation-based state Labour transformation and legislative interpretation in light of the Constitution Constitutional endorsement and case study Dangers of interpretation and the ideology of law Will labour law remain effective in promoting the values enshrined in the Constitution, and accordingly, will these Constitutional values remain effective in their use in practice? Conclusion Bibliography 39

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7 1 1. Introduction The value and relevance of an idea can only flourish if steps are taken in order to develop that idea. That idea must start its growth upon certain fundamental values which solidifies its very purpose before that idea can become an action. Once the values have been established, the idea is ripe for action. That action, however, can either result in a positive or negative outcome. What is positive and negative is dependent on one s own interpretation, but is also dependent on the impact the action has on society at large. With the advent of a constitutional democracy ( the idea ) various actions have been put into place in order to have a positive effect on South Africa s growth going forward, for example, the enactment of various legislation, namely the Constitution of the Republic of South Africa 1 and other labour legislation. As part of taking positive measures, the purpose and enactment of these various legislative works in South Africa seek to deal with and combat specific areas of our society in order to properly control (legislate), and ultimately, develop the country as a whole. More specifically, Labour legislation has been enacted to properly control and grow the ever fluctuating economic and labour sectors of our society. 2 The only manner in which such enactments may render positive results, it will be argued, is through proper interpretation, and therefore enforcement, of such enactments. More literally, the employment of a body or sphere needs to be present, which body actively and purposively, promotes those 1 The Constitution of the Republic of South Africa, Section 1 of Labour Relations Act 66 of 1995 reads: The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) To give effect to and regulate the fundamental rights conferred by section 27 of the Constitution; (b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organistaion; (c) To provide a framework within which employees and their trade unions, employers and employers organisations can (i) (ii) Collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and Formulate industrial policy; and (d) To promote (i) (ii) (iii) (iv) Orderly collective bargaining; Collective bargaining at sectoral level; Employee participation in decision-making in the workplace; and The effective resolution of labour disputes.

8 2 enactments to a level which conforms to the initial idea, i.e. the Constitution and its fundamental rights and values. This thesis assumes and directs that the aforementioned body must be that of the adjudicative body in South Africa. Karl E. Klare, in his thesis entitled Legal Culture and Transformative Constitutionalism 3 quite boldly states that, I take for granted the perhaps controversial assumption that because adjudicators can never be totally constrained by their legal sources, because no one has yet devised or is likely to devise a system of total constraint consistent with democratic values adjudication is, inevitably, a site of law-making activity. 4 This thesis will therefore make an in-depth analysis between the initial idea, the action and ultimately the result. In other words, this thesis will seek to understand whether or not, through the interpretation of legislation, the fundamental ideas and values of the Constitution are reached through the adjudicative powers and discretions used by our judiciary. Have the actions of the judiciary therefore been reconciled with the initial idea? This thesis will prove that the argument by Klare, that adjudication is the most reflective and self-conscious, the most grounded in reasoned argument and justification, and the most constrained and structured by text, rule and principle, [and which body we can] legitimately expect to [properly] innovate and model intellectual and institutional practices appropriate to a culture of justification. 5 The thesis will go further to analyse whether or not interpretation by South African labour courts has progressed to such an extent that it adequately promotes the values that underline our constitutional dispensation. It will also go further to suggest the shortfalls which may be experienced, should a proper development of the law, in light of fluctuating economic and labour factors, not be made. Labour was the first price, the original purchase - money that was paid for all things. It was not by gold or by silver, but by labour, that all wealth of the world was originally purchased SAJHR 146 at p above. 5 above at p A Smith The Wealth of Nations 2003 Introduction by Alan B. Krueger Book 1 Chapter 5 at p 44.

9 3 Labour must be properly controlled and expressed in our society; for labour grows the wealth of our nation. Adjudication and interpretation of labour law in South Africa must therefore be properly manifested for essential growth in our society to continue, and for the wealth of our nation to flourish.

10 4 2. Constitutional supremacy The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. 7 Section 2 of the Constitution boldly affirms that there is no other law which may supersede the Constitution; law or conduct inconsistent with it will be invalid, and the obligations imposed by it must be fulfilled. 8 This section, comes as a result of South Africa s historical and oppressive apartheid regime, characterised by parliamentary supremacy. 9 A move away from South Africa s previous dispensation which was premised on parliamentary sovereignty and characterised by gross violations of fundamental rights, including a clear change in societal habits, enunciated the need for certain fundamental rights and values, which would be housed in a protective statute or body and which body would rule supreme over the land. 10 On the one hand, the fundamental ideas of government and society that underlie our Constitution are drawn from the history and experience of human societies throughout the world. On the other hand, the specific form that those ideas have been given in the 1996 Constitution is the result of the engagement of South African in debates and struggles over many decades and is a reflection of the particular hopes and aspirations of our diverse society. In this sense, our Constitution is part of an age-old human project to regulate social interaction in a way that protects social stability and yet enables societies to change and develop. 11 South Africa moved towards a constitutionally supreme state, in which the Constitution is now deemed to be the supreme law of the Republic: Section 8(1) of the Constitution, furthermore makes the Bill of Rights (chapter 2), as highest law, applicable to all law (that is, statute, common and customary law) S 2 of the Constitution of the Republic of South Africa, above. 9 I Currie and J de Waal The New Constitutional and Administrative Law 2001 Juta Vol 1 Chapter 2. I Currie and J de Waal The Bill of Rights Handbook 2005 Juta 5 th Ed at p I Currie and J de Waal The New Constitutional and Administrative Law n 9 at Chapter 1 par above. 12 L Du Plessis Interpretation of statutes and the Constitution in Bill of Rights Compendium (June 2012) par 2C2.

11 5 In the context of South Africa s historical background, it is clear why the aforementioned sections, namely sections 2 and 8, fall within the founding provisions of the Constitution they pronounce precisely that the Constitution is the highest and supreme law of the land. These provisions must be interpreted to mean that all other law, apart from that pronounced in the Constitution, must fall within the legislative values afforded to those specific provisions in the Constitution, and therefore, if other law is inconsistent with such values then that law will remain of no force and effect. Both these provisions therefore contain essential elements in ensuring that the values of the Constitution as a whole are accounted for. The principles nevertheless are all justiciable in the sense that any law or conduct inconsistent with them may be declared invalid. But the basic principles do more work than this they tie the provisions of the Constitution together and shape them into a framework that defines the new constitutional order. The basic principles [or fundamental values] therefore influence the interpretation of many other provisions of the Constitution. 13 Some of the fundamental values upon which the Constitution is based, include: human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; supremacy of the Constitution and the rule of law; universal adult suffrage, and national common voters role, regular elections and a multiparty system of democratic government, to ensure accountability, responsiveness and openness. 14 In order to ensure that South Africa is based on constitutional supremacy founded by fundamental values, the aforesaid values are to be upheld and promoted at all times. 15 It is 13 I Currie and J de Waal The Bill of Rights Handbook, n 9 at p s s 7(2) of the Constitution of the Republic of South Africa, 1996 reads:- The state must respect, protect, promote and fulfil the rights in the Bill of Rights. s 8(3) goes on further to state:- when applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2) a court

12 6 important to understand how the Constitution and its fundamental values dictate the manner in which law and legislation are dealt with, more specifically, within the labour law context and our developing society, as this will help paint a clearer picture on why the following question has become necessary to ask (especially if we see it fit to continue and promote a country which is based on fundamental values that seek to protect its people and avoid historical indifferences and unpleasantries which have been experienced before):- Has our current law (labour law) and the Constitution been reconciled to the extent that such labour law remains appropriate and relevant in governing our South African shifting society? (a) In order to give effect to a right in the Bill, must apply, or if necessary, develop, the common law to the extent that legislation does not give effect to that right; and (b) May develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1). It is clear from the above sections that the fundamental values of the Constitution must be promoted at all times, and there in fact lies a duty on the State to ensure that these values are expresses when interpreting the law.

13 7 3. Constitutional framework The Constitution came into force and effect on 4 February Section 2 and section 8(1) of the Constitution are bold affirmations of the Constitution s highest authority in a legal system that, historically, harbours formative elements militating against this very conception of constitutionalism. 16 Lourens du Plessis sets out three factors which has influenced the content and outcome of South Africa s constitutionalism. 17 These factors are as follows: First, there is the common-law preference for an unwritten, judge-made law to guide and facilitate the historical evolution of vast areas of law (including public, and especially constitutional, law) within the legal system; Second, there is unfamiliarity with the expansive and open-ended style in which a supreme Constitution with a bill of rights must necessarily be couched; Third, there is the South African political and constitutional history of a minority parliament that enjoyed sovereignty for almost 85 years and for which the advent of constitutional supremacy (and, with its, constitutional democracy) would eventually toll the death knell. 18 Du Plessis goes on to state that, to be of any consequence, affirmations of constitutional supremacy have to be backed by operational stipulations providing for the justiciability of the Constitution. 19 Certain provisions detailing these operational stipulations include: Section 165(5), which provides that an order or decision issued by a court binds all organs of state to which it applies. [Furthermore], Section 172 details the powers of these courts in constitutional matters, which includes any issue involving the interpretation, protection or enforcement of the Constitution. 20 And further, The Constitutional Court, the Supreme Court of Appeal and higher courts are thus invested with the power of constitutional review which is circumscribed, however, in that it is conferred on various courts 16 L Du Plessis n 12 par 2C2. 17 above. 18 above. 19 above. 20 above.

14 8 to varying degrees and in that judicial discretion to exercises this power, subject to restrictions mitigating or postponing the effects of a declaration of invalidity, is allowed. These courts of therefore charged with the responsibility of sustaining the constitutional supremacy while they too are subject to it. 21 Certain bodies of government, namely the judiciary, derive its powers from a written constitution and these powers are limited to those set out in that constitution. 22 It is therefore clear to see that the Constitution seeks to promote fundamental values, and at the same time provide certain powers, which powers must be limited in order to promote those fundamental values. 23 The Constitution is ultimately one s first port of call when dealing with and promoting rights and obligations of all people of the land, including those of governmental institutions all law or conduct inconsistent with it becomes/is invalid. 24 Du Plessis argues however that the higher authority of the Constitution is not to be overused to decide issues that can be disposed of with reliance on particular, subordinates and nonconstitutional law. 25 He argues that where it is not necessary to use the all-encompassing value of constitutionalism to determine a specific issue which may be dealt with by a lower body or forum in a more specific manner, then that method is to be preferred. 26 Apart from the hierarchical status of South African courts, legislation (after the advent of constitutional democracy) is now drafted to be expansive and flexible in style in order to incorporate the supreme constitutional values. 27 Du Plessis suggests that higher laws trumps lower laws, and that the status of legislation on lower laws owes their existence to and is derived from higher laws. 28 These lower laws act as separate hands used to deal with specific issues, but which stem from the same body. 29 Therefore, in order to avoid placing an overburdened duty on the Constitution to deal with every issue in dispute, lower laws are created in order to lessen that burden and more readily deal with issues which are 21 L Du Plessis n 12 par 2C2. 22 above. 23 I Currie and J de Waal The New Constitutional and Administrative Law n 9 at p above at p L Du Plessis n 12 at par 2C2: Generally speaking, subsidiarity obliges a more encompassing, superordinate body (or community) to refrain from taking, for its account, matters which are more particular, subordinate body or community can appropriately dispose of, irrespective of whether the latter is an organ of state or of civil society. 26 above 27 above at par 2C3. 28 above at par 2C4. 29 above.

15 9 not always necessary for higher laws to deal with so long as the lower laws stem from and comply with the higher laws. 30 It is therefore deduced that any legislation enacted subsequent to the Constitution must therefore be considered to be a lower law in comparison to the Constitution, which is a higher law. This hierarchical status therefore determines the inadmissibility of certain lower laws in comparison with higher laws. In turn, the certain lower laws would therefore need to be in compliance with, promote and/or value the constraints of the Constitution and its premise. 31 Anything inconsistent with it would therefore be invalid. 32 Notwithstanding this fact, it must be remembered that although the Constitution is the supreme law of the country, it cannot deal with in detail every aspect and every issue which is present in our society, and therefore this goes to show that even the Constitution (as the supreme law) may be vague on certain issues specifically. For example, it may be argued that section 23 of the Constitution often leaves open certain questions in relation to specific labour issues, and where in turn a lower law would ultimately have to deal with in more particular detail. For this reason, lower law is enacted for the sole purpose of dealing with specific issues in our society. 33 For example, certain legislation has been enacted to deal specifically with employment and labour issues in South Africa. The Labour Relations Act ( the LRA ) and the Basic Conditions of Employment Act ( the BCEA ) are just a few examples of pieces of legislation which deal with labour related issues In this regard, although the Constitution does provide for certain labour related rights, more specifically in section 23 of the Constitution, the LRA and the BCEA deal more comprehensively with the rights and regulations of labour and employment law, respectively. However, the LRA and the BCEA must comply with and promote the values enunciated in the Constitution, more specifically, the rights afforded in section 23 therein. Both the hierarchy and status of legislation have a tangible impact on the operation and validity of enacted law L Du Plessis n 12 par 2C4. 31 above. 32 S 2 of the Constitution of the Republic of South Africa, L Du Plessis n 12 par 2C of of L Du Plessis n 12 par 2C4.

16 10 Apart from the aforegoing, lower laws will always come second to best; higher laws, and therefore legislation such as the LRA and BCEA will always be susceptible to the supreme law of the land. However, this rule of law may be dangerous in that sovereignty of a potentially outdated constitution will result in the lower laws being ineffective. The judgment of In re: The Ex Parte Application of the President of the Republic of South Africa affirmed the sovereignty of the Constitution wherever and whenever the exercise of any form of public power becomes susceptible to judicial assessment. The position that Chaskalson P follows, in the course of his judgment in the Pharmaceutical Manufacturers Case 39, wherein he contended that the common law should not be treated as a body of law separate and distinct from the Constitution, may be endorsed: There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. 40 It is dangerous for one to say that there is only one system of law, namely the Constitution (that derives its force from the Constitution and is subject to the constitutional control) if that one system of law fails to progress and mould with changes in society. The reason for this is that the Constitution will fail to uphold its own fundamental values if the rights and obligations which it enforces remains ineffective and outdated. A supreme body of law needs to be one which is effective and bears continuity in the manner in which law is promoted and adapted, and which may adapt to fundamental changes in society. In this regard, it is further suggested that if the Constitution remains stale then any lower law which seeks to uphold its values and vision will in turn become redundant and fail at the outset. This view may be expressed properly in light of the topic of Constitutions and the good society, as discussed by I Currie and J de Waal (1) SA 732 at par L Du Plessis n 12 par 2C (3) BCLR 241 (CC). 40 above at par I Currie and J de Waal The New Constitutional and Administrative Law n 9 at p 24.

17 11 They suggest that the word constitution has acquired a normative sense. 42 They go on further to state that, It refers to the organic and fundamental law of a particular state, and implies a commitment to a particular vision of a good society. 43 A modern constitution [therefore] performs several functions, [more specifically], it provides a legal framework for the operation of government; it defines the ultimate sources of legal authority, and provides the foundations of the public law system: it is the law behind the law. 44 A good society must ultimately therefore depend on the particular historical background of a specific country, its ideals and the circumstances which forces it to change or grow. The good society vision would therefore depend on various fluctuating changes in social development. What is a good social vision now, may differ to the good social vision in 10 years time - just as it did at the time of the Apartheid Regime, and that of the constitutional South Africa. A good society vision is therefore dependent on what the current social context dictates. Therefore, if the Constitution is an instrument for properly expressing a commitment to a particular vision, be that of a good society, and further, if a good society vision differs from changing times, then the Constitution must be malleable to the changing times in order to properly keep up with what the good society vision is at present. A Constitution which is stale and no longer meets that good society requirement becomes ineffective. In order to combat the aforementioned dilemma the judiciary, which will be deemed to be the forerunner law-making body in this thesis, and as suggested hereinabove, must impress on their own minds the need to develop law accordingly and in light of the ultimate vision of the Constitution (i.e. the promotion of a society which heals the divisions of the past and which is based on democratic values, social justice and fundamental human rights and where government is based on the will of the people and every citizen is equally protected by the law) 45. In this way the Constitution remains relevant and flexible, in that it now accords with 42 I Currie and J de Waal The New Constitutional and Administrative Law n 9 at p 24. Normative means a standard, rule or principle used to judge or direct human conduct as something to be complied with. 43 above. 44 above. 45 Preamble of the Constitution of the Republic of South Africa, 1996.

18 12 the values of a good society. The method of interpretation of statutes, which employs a methodology of living constitutionalism (this will be discussed in more detail below) therefore becomes an important tool in ensuring that the Constitution is effective and bears continuity for centuries to come A. Winkler A Revolution too soon: Woman Suffragists and the Living Constitution NYULR November 2001 Issue at p 1463 Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

19 13 4. The interpretation of statutes and the Constitution, including a brief view of the development of interpretative methods in America. Interpretation of statute is key to combat the abovementioned dilemma and must be the prerequisite position going forward. 47 The judiciary s power to review or test legislation derives from the justiciability of the supreme Constitution. Section 172 (1) (a) authorises a court of law to declare any law that is inconsistent with the Constitution invalid to the extent of that inconsistency. Such a declaration results in the complete or partial demise of the statutory provision in question. 48 Furthermore, the (judicially) construed Constitution (including the Bill of Rights) decidedly affects various facets of statute law and thereby sets, in a demonstrable and tangible way, the scene for and limits the interpretation of statutes. Not only statute is subject to the Constitution, but they also have to be read in the light of the Constitution in several ways. 49 Du Plessis details the various ways in which statutory interpretation is concluded. They include the following: [S]ection 39 (2) of the Constitution requires a mode of statutory interpretation that promotes the spirit, purport and objects of the Bill of Rights. Meaning has to be attributed to the said provision in accordance with the procedures of constitutional interpretation. 50 Furthermore, the meaning which is placed upon or deduced from such interpretation will impact on the manner in which legislation is construed L Du Plessis fn 12 at par 2C9. 48 above. 49 above at par 2C above. 51 above.

20 14 One would agree, in light of the guise of the Constitution, that any meaning deduced from such interpretation must be one which promotes constitutional values, as discussed hereinabove. A good example of how the courts exercised such power may be seen in the Supreme Court of Appeal s judgment in the case of Cape Killarney Property Investments (Pty) Ltd v Mahamba, 52 wherein it was held that section 4 (4) of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act must be read in a manner affording a respondent in eviction proceedings the maximum benefits of effective notice of such proceedings, 53 since section 4 (4) has its roots in section 26 (3) of the Constitution. 54 Du Plessis states that constitutional interpretation, in the course of a court s exercise of its testing rights, sparks off a dialectical interplay between the constitutional text and an impugned statutory text. 55 He goes on further to say, the scope and effect of the one has to be considered in the light of the other and, since the Constitution is supreme, it determines the parameters within which meaning can be attributed to the statute and not vice versa. 56 It is suggested however, that there is a difference between statutory and constitutional interpretation, in that statutory interpretation can only follow that of constitutional interpretation. More particularly, since the Constitution is the supreme law of the land, all other laws would need to be interpreted in accordance with the Constitution, which means that statutory interpretation will be informed by the Constitution, and not vice versa. Constitutional interpretation will in turn be informed by the fundamental values which it seeks to uphold. Both statutory and constitutional interpretation would ultimately then be coached by the fundamental values which the Constitution seeks to uphold. As is mentioned above, sections 2 and 8 of the Constitution clearly pronounce that the Constitution is the supreme law of the land and any other law which is inconsistent with it will be void. Therefore, in keeping with the promotion of specific values entrenched within the Constitution, statutory interpretation must be informed by those values and must remain consistent with the provisions enshrined within the Constitution (4) SA 1222 (SCA) - Brand AJA of (4) SA 1222 (SCA) n 52 at par L Du Plessis n 12 at par 2C above.

21 15 Section 39(1) and (2) of the Constitution specifically provides that when interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society base on human dignity, equality and freedom, and furthermore, when interpreting any legislation every court must promote the spirit, purport and objects of the Bill of Rights, respectively. It is clear that it was the intention of the constitutional Framers that interpretative methods employed should strictly ensure that the values of the Constitution are upheld and promoted, and therefore, legislation should always by interpreted in conformity with the Constitution, also known as reading down. Therefore, the method employed in interpreting whether or not a statutory provision is consistent with the values and provisions of the Constitution must be precise in order to ensure that Constitutional values are upheld, and the law is effective. If the method of interpreting the Constitution and various legislation falls short of promoting the said fundamental values in that there is a societal shift in what is deemed to be a good society, as suggested hereinabove, then those fundamental values are no longer sought after, and therefore the methodology in statutory and constitutional interpretation becomes null and void. The differences between constitutional and statutory interpretation has much to do with the uniqueness of the constitutional text. 57 Froneman J explains, in a very aptly manner, that: The interpretive notion of ascertaining the intention of the legislature does not apply in a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the legislature. This means that both the purpose and method of statutory interpretation in law should be different from what it was before the commencement of the Constitution in The purpose lies to test legislation and administrative action against the values and principles imposed by the Constitution. This purpose [is] necessary [and] has an impact on the manner in which both the Constitution itself and a particular piece of legislation said to be in conflict with it should be interpreted L Du Plessis n 12 at par 2C10 - "(a) the Constitution, as supreme law, is a long-lasting, enacted law-text at the apex of the legal system. (b) the Constitution is just the civil and, therefore, a standard for the assessment of the validity of both "law" and "conduct" in every (legislative and executive) echelon of government. (c) the Constitution verbalises, in characteristically broad, inclusive and open-ended language, values and beliefs associated with democracy and the Constitution state." 58 Matiso v The Commanding Officer, Port Elizabeth Prison 1994 (3) BCLR 80 (SE) at par 87E G.

22 16 The principle for the interpretation of statute is to be derived from the Constitution, [and] the Constitution has not deprived statutes of their worth or force, but has given them new direction.. 59 Methods of interpretation of statute are therefore doctored in case law and their characteristics are really seen and pronounced on a case-by-case basis. This will be dealt with and looked at a later stage in this thesis. Winkler (Lecturer in Law at the University of Southern California Law School) states that, around the turn of the twentieth century, constitutional argument shifted from the traditional mode of originalism in which constitutional disputes are settled by reference to the intent of the Framers to an evolving, progressive living constitutionalism [or effective constitutionalism] in which constitutional provisions are unmoored from their originalist grounding and interpreted to meet present societal needs. One would believe that this notion should be true, given that the original framing of a constitution is based on specific societal needs at a specific period in time, and therefore, in order for a country to grow, a constitution, or at least the interpretation thereof, needs to be evolving and progressive to meet present societal needs. This is true too for the Constitution of the Republic of South Africa, A brief historical view of this notion should be considered in order to properly contextualise this idea of living constitutionalism, or better phrased as effective constitutionalism, as argued by Winkler. In the early 1870s a cadre of woman suffragists, including Elizabeth Cady Stanton, Susan B. Anthony, and other members of the National Woman Suffrage Association (NWSA) put forward a version of living constitutionalism when they mounted legal challenges to their continued disenfranchisement following the ratification of the Reconstruction Amendments to the U.S. Constitution. 60 These woman suffragists, though unsuccessful in achieving their goal of enfranchisement through constitutional interpretation, used living constitutionalism long before the Progressive Era and helped to shape the evolutionary constitutional method that became dominant in the twentieth century. 59 L Du Plessis n 12 at par 2C A Winkler n 46 at p 1457.

23 17 Winkler argues that the notion that the meaning of textual provisions should be determined by reference to the original intentions of those who framed and ratified the document should not be fully supported. 61 So too must our judiciary, in interpreting legislation in light of the Constitution, be careful to take heed of present societal needs, regardless of the original intentions of those who promulgated the Constitution. In light of South Africa s brittle history, one must certainly be weary not to go beyond the powers and purpose for which the Constitution was originally framed and further should make reference to the intent of the constitutional Framers to resolve past controversies, however, in order to keep the Constitution effective and current, interpretative methods need to be more flexible and susceptive to societal changes and needs if there is to ever be a vision of good society. 62 A firmly entrenched originalist approach, [in its Newtonian conception of constitutional interpretation] are static and unchanging, akin to timeless scientific truths. 63 Winkler suggests that recourse to the original intent of the framers was coupled with a mechanical conception of the political order of the time, where the Framers set up various institutions and defined their relative powers, creating a regime of rights from which the judiciary was not free to stray. 64 If such a method is true in South Africa s present interpretative methods of the Constitution and of various legislation, it would go against everything for which the Constitution sought to originally obviate. The Constitution was a measure sought to rid the country of the apartheid regime and the various oppressive laws which the Framers of that time has installed in South Africa. South Africa s brittle history serves as a reminder that constitutional development and practice has to emerge with the changing times and societal needs. Accordingly, South Africa needs a living constitution/effective constitution. Living constitutionalism, according to the classic definition, is the idea that in a dynamic society, the Constitution must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. A constitutional 61 above at p above. 63 A Winkler n 46 at p 1461 Originalism method of interpretation dominated constitutional thought and practice during the nineteenth century in America. 64 above.

24 18 provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change. 65 Therefore, under this theory of constitutional interpretation, fidelity to original constitutional principles means that their scope of application must evolve with the underlying changes in society. 66 In keeping with the above conclusion and to demonstrate the real need for a constitution which is effective and bears continuity, one must also take cognisance of the powers/tools which may assist in adjudicative methods of interpretation. In his argument about legal transformatism and the use of adjudicative methods in the determinancy of legal texts, Klare states the following: Legal texts do not self-generate their meanings; they must be interpreted through legal work. Legal texts, particularly constitutions, are shot through with apparent and actual gaps (unanswered questions), conflicting provisions, ambiguities and obscurities. 67 As is mentioned earlier in this thesis, Klare promotes the transformation of constitutionalism through the use of the adjudicative body. I too agree with this notion, and the adjudicative body may certainly assist with promoting a constitution which remains effective and bears continuity. However, the only way in which the adjudicative body (more particularly in this instance the labour courts) will effectively promote the constitution and its fundamental values in a manner which bears continuity is for the adjudicative body to interpret legal texts, or the Constitution, in a manner which is influence by outside factors, such as the current social context of the South African labour market. Klare asks the following pertinent question: In the face of gaps, conflicts, and ambiguities in the available legal materials, what s a decision maker to do? 68 And he answers it as follows: 65 C A Reich, Mr Justice Black and the Living Constitution 1963 Harv. L. Rev. Issue at A Winkler n 46 at p SAJHR 146 n 3 at p above.

25 19 Apart from abdication, there seems no option but to invoke sources of understanding and values external to the texts and other legal materials. 69 These external values must derive from a deeper understanding of why the Constitution was enacted in the first place, and further, be based on the understanding of a need for social continuity and development over the course of time. Their methods of interpretation therefore remain reliant on adaptive and transformative understandings of the constitutional and democratic context of our society, and the values pronounced by the Constitution. A hurdle which may be experience within the South African context of the aforementioned interpretative methods, is the fact that South African legal professionals tend to interpret legal text in a manner which is very compliant in nature and which relies too heavily on the actual text of the Constitution. Klare observes that South African lawyers display a, relatively strong faith in the precision, determinancy and self-revealingness of words and texts. Legal interpretation in South Africa tends to be more highly structured, technicist, literal and rule-bound [than in the United States]. 70 Karin van Marle in her Thesis entitled, Transformative Constitutionalism as/and Critique 71 agrees with Klare s observations and states that, South African lawyers still believe in the logic of deduction in order to reach specific conclusions from general and abstract premises. 72 Van Marle questions further, why should lawyers, judges and legal scholars firstly be conscious of their conservative style, and secondly be able to challenge it and consider other approaches? above SAJHR 146 n 3 at p Stellenbosch L. Rev above at p above.

26 20 Klare answers the above question with accuracy as follows: [It] reduces the transparency of the legal process, thereby undermining its contribution to deepening democratic culture, [and further], jurisprudential conservatism may induce a kind of intellectual caution that discourages appropriate constitutional innovation and leads to less generous or innovative interpretations and applications of the Constitution. 74 Ultimately, the interpretative method which is employed in developing Labour Law in South Africa would need to be transformative in nature, employ an understanding and awareness of South Africa s current social context and promote the values of the Constitution in a way which remains effective and bears continuity SAJHR 146 n 3 at p 171.

27 21 5. The position of interpretation in a legislation-based state Van Staden, works through the notion (as noted by Seeley) that we live in a legislation-state, i.e. which is a state devoted to the business of legislation Van Staden describes how legislation has become an indispensable source of contemporary law, if not the most important source. Statistically, parliament has adopted a vast majority of new Acts since The Department of Justice and Constitutional Development has promoted 108 Bills, which have been enacted by Parliament. In 1994 the Department promoted 5 Bills, 12 in 1995, 16 in 1996 as well as in 1997 and 1998, 3 in 1999 (election year), 7 in 2000, 10 in 2001, 14 in 2002, 8 in 2003 and 1 in This is an average of about 11 Bills per year. Forty of these statutes are entirely new statutes, giving an indication of the growth in our law since 1994, mainly in order to give effect to the new constitutional dispensation. 77 He suggests that the most important way of addressing deficiencies of the common law effectively is by means of legislation, and the legislature is also an institution that is capable of responding quickly and effectively to frequently fluctuating circumstances of a socio-economic nature. 78 The judiciary, on the other hand, also has a role to play in developing our law in response to fluctuating circumstances. However, a negative eye is cast on the judiciary s power in light of the narrow view of the separation of powers doctrine and the role which is played by our courts. 79 Furthermore, it is believed that the regulation of society is properly held to be exclusively the domain of the legislature. 80 In light of the above described clash between the powers of the judiciary and legislature we start to properly separate these powers at the stage when legislation has already been enacted and is currently being practised in society. Up until this point, it is argued, for the legislative body to rectify any issues experience by current legislation by way of merely enacting further 75 M van Staden, The role of the judiciary in balancing flexibility and security, 2013 vol 46 no 2 De Jure Sir J. Seeley, Introduction to Political Science: Two Series of Lectures Statutes Promoted by the Department of Justice and Constitutional Development - (accessed on 2 August 2014). 78 M van Staden n 75 at par 1 p above. 80 above.

28 22 legislation would be an exercise which further burdens our legal developments, rather than rectifies and progresses. It is for this reason that I place further emphasis on the need for interpretation of statute by our courts. As is described by Van Staden, labour law is created by Parliament and applied by the courts. 81 It must be remembered however, that there is a limitation on this power exercised by courts. At all times any such interpretation must be made in light of the values and premise of the Constitution. To do so will result in the Constitution remaining valid and relevant at all times. This does not mean that the judiciary has no legislature function and that it cannot contribute to the regulation of labour markets. 82 A great specimen of law within which to analyse and evaluate the above functions and powers is with labour legislation. This legislation is drafted very generally. 83 [I]t is then left to the courts to interpret the provisions of such legislation and the courts therefore become important actors in the flexibility/security debate as they create law or regulate labour through their interpretive mandate M van Staden n 75 at par 1 p above. 83 National Education Health and Allied Workers Union v University of Cape Town 2003 (2) BCLR 154 (CC) at par M van Staden n 75 at par 1 p 472.

29 23 6. Labour transformation and legislative interpretation in light of the Constitution As was discussed under heading 4, hereinabove, the need for a living constitutional method of interpretation stems from the need to move away from historically enshrined regimes which no longer held firm among changing societal needs. The same is true for, and which resulted in, the evolution of labour law in South Africa. The development of trade unions and employer organisations occurred in the context of a period of rapid industrialisation [during the] twentieth century. 85 Change lay in what the commission termed the labour unrest of 1973, [where] during that year trade unions representing mainly black employees had rejected the racist legislative dispensation, and sought to negotiate non-statutory recognition agreements and establish work-place bargaining structures in individual enterprises. 86 The significance of this jurisprudence is that it developed and applied the concept of fairness to the employment relationship, [where] contractual terms of the employment context were directly subordinated to considerations of fairness. 87 The above agitations in employment law goes to show that there was a need for a new departure which actively sought labour reform and because it succeeded in calling into question the value and wisdom of continuing to abide strictly by the intent of the original Framers of that employment law, just in the same way as abolitionist constitutional agitation lead to a new beginning for New Departure suffragists in America, as described by Winkler. 88 Section 1 of the LRA states that, the purpose of this act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objectives of this act which are (a) to give effect to and regulate the fundamental rights conferred by section 27 [now section 23] of the Constitution 89 Section 23 of the Constitution details rights in terms of labour relations. These rights include: 85 A van Niekerk, Law@work 2001 LexisNexis 2 nd Ed at p above at p above at p A Winkler n 46 at p of 1995 n 34.