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Leading voices in South Africa’s labour law arena have said that failures to adjust to a changing labour economy led to the massacre at Marikana, and that mechanisms are too rigid for the current economy.
Director of the CCMA, Nerine Khan, told Towards Carnegie III on Thursday morning that while labour policies are sound, their effectiveness is being undermined by an inflexible system, and that ordinary workers have been alienated by both the employer and trade unions.

Referring to Marikana, Khan said although the workers had gone on an unprotected strike, “quite frankly, they don’t care.” The workers had told the CCMA “They don’t want trade unions because the unions had not delievered to them.” The rise of violence reminded her of the Apartheid era. “I feel like I woke up in 80s.”

The situation is complicated by workers feeling abandoned by their unions. “They don’t want trade unions because the unions had not delivered to them…..Trade unions are recognising the more highly-skilled workers, but they are not actually dealing with the lowliest workers, and there is a lack of trust. “It’s very difficult to negotiate with a workforce that lack guidance or a strong leadership.” The CCMA was now talking to the clergy who were the only outside people the workers trusted. Professor Halton Cheadle of UCT’s Faculty of Law said the violence at Marikana had nothing to do with labour regulation.

“What happened [at Marikana] was an institutional failure, on every level, in every sector. Provincial, municipal, national, unions, management and police. And now the NPA have rushed to join this vortex of incompetence.”

Members of the panel, which included law professor Paul Benjamin, who drafted much of the labour legislation, said labour laws were being manipulated by both sides of the contract barrier, in dragging out cases in the courts and to subvert the intentions behind the rules governing temporary employment.
The National Planning Commission’s (NPC) suggestions regarding changes to labour law were generally well-received. Chris Todd, of the law firm Bowman Gilfillan said:“We assume we’re stuck with what we’ve got, and that we have to tinker with it.” But they complained that laws regarding collective-bargaining and better enforcement need to be implemented.
Judge Dennis Davis, a judge on the Labour Appeal Court, warned that “we have lots of plans, but very little implementation of plans.” The judge decried an overly-judicial system that encouraged endless appeals. This showed, he joked, government’s determination “to commit ourselves to a redistribution of wealth to the legal community.”

by Berndt Hannweg