Die resepsie van arbeidsreg in Suid-Afrika

Abstract

This article investigates the reception and early development of labour law in South Africa. The labour law systems of both the Netherlands and England were adapted to local socio-economic and political circumstances. A unique dual labour law system came about. This system made provision for black and white workers separately. Research into the reception of labour law in South Africa is complicated by the fact that the 17th-century colonists had no instructions as to which legal system to apply. Moreover, the first court, the Court of Justice, furnished no reasons for its decisions. Legislation in the form of plakkaaten of the earliest legislative body, the Political Council, did not contain any material law either. The only possible way of establishing which legal system and thus which labour law system applied to the Cape, is by investigating the labour law practices in place, together with the labour law heritage of the colonists. The labour relationship between white employers and white employees was based on the Roman locatio conductio operarum, a contract entered into freely and which did not affect the personal freedom of the employee. However, feudalism which was being phased out in the Netherlands where most of the early colonists came from, applied in respect of the labour relationship between white employers and black employees. The reason for this appears to be that the unsophisticated indigenous habitants who had no possessions (the Khoikhoi), sought work and protection from those who possessed land (the whites). This feudal relationship curtailed the freedom and thus brought about a change in the status of the employee (servant/vassal). The position of the indigenous people degenerated from one of being able to enter freely into a labour relationship to one of being forced to seek employment by white persons. This was brought about by methods used by the colonists and legal measures implemented by the different governments to ensure a stable labour force. Although the Netherlands and British governments in South Africa endeavoured to protect indigenous labourers from the practices ‘enslaving’ them, both governments legalised some of the oppressing measures practised by the colonists. Slavery had a definite influence on the labour relations in the Cape. White people associated Khoikhoi and slaves (dark-skinned people) with each other. The result was that white people who experienced labour shortages, regarded themselves as being entitled to thelabour of indigenous people as well. Certain measures, such as the apprenticeship system, pass laws and the tot system were implemented to combat labour shortages and had the effect that indigenous people were kept in a slave-like position.