The postcoloniality of labour law: a South African perspective.

Abstract

This study locates itself in endeavours to decolonise the accepted legal knowledge. It concerns itself with the formation of South African labour law and reflects critically on the ideology informing the concept of labour and labour law since the colonial incursion of Europeans. A contrapuntal examination of the law which developed a wage labour system that denied Africans pertinent recognitions and entitlements is carried out using the vantage of postcolonial theory. The process advances revisiting the text of laws from a locus that centres the predicament of Africans rather than colonial preoccupations. Therefore the narration of the management of Africans during the nineteenth and twentieth centuries and the convoluted interaction between evolving social, political and economic institutions is revealed as labour law. With a particular focus on the circumstances of African mine workers in the then Transvaal, the study widens the understanding of historically operative labour law. Using early law, this study maps the development of an appetite for cheap labour following colonial invasion, which accelerated with the discovery of mineral deposits in South Africa. A comprehensive disclosure of the founding assumptions of labour law, such as territorial seizures, enslavement, corporeal deprivation and the development of corresponding property rights, highlights the damage wrought. An excavation of the often-overlooked objectives and repercussions of legal provisions reveals that they rested on the conviction that African humanity ought to be downgraded. It began with the superior-inferior reasoning that yielded the master and servant positioning of relations between the white arrivals and Africans. The attempts to resolve the ‘native question’ were the fulcrum of the conceptual order that has been devised. An examination of the post-apartheid hegemony of labour law considers whether the retention of the Eurocentric structures, under which labour relations are consigned to operate, is legitimated by the seeming incorporation of Africans into the scheme. The results indicate that the touted generalisable corporate benefits of collective bargaining and workplace compensation are deficient because they perpetuate the colonial notion of privileging a few at the expense of the many. Therefore a process of restoring faith in and being guided by African philosophical paradigms for the fashioning of South African labour law is required.