Employment in South Africa grew marginally by 26,090 jobs in June. This is according to Adcorp Labour Economist Loane Sharp, in the latest Adcorp Employment Index.

He adds that permanent work figures were flat (-0.02%), while temporary and agency work grew (4.3% and 4.8% respectively) during the month. Interestingly, temporary work now accounts for 31.1% of formal sector employment, with agency work accounting for 25.4% of this temporary employment.

Informal employment also witnessed growth this month at 2.29%. This sector now employs 6.5 million people. The public sector continued to create jobs during the month, amounting to 11,000 in government and 7,000 in state-owned enterprises. All occupations created jobs apart from basic work, i.e. elementary and domestic workers. The economy's absorption of high-skilled workers continued in June, absorbing 26,000 workers.

However, it was not all positive growth this month. Significant job losses were observed in mining (2,000), manufacturing (15,000) and construction (1,000).

In his analysis, Sharp explores the ways in which the recent platinum workers' strike might have been resolved without a five-month deadlock between employers and striking employees.

"The platinum miners' strike  is the biggest labour relations calamity since the 1922 Rand Rebellion when then-Prime Minister Jan Smuts employed the military to crush the open rebellion by mine workers and more than 200 mine workers were killed,"  he says.

 "While it may seem strange to draw similarities between the 1922 and 2012 events, trade unions' motives in both cases were identical."

In 1922, following a drop in the world price of gold from 130 shillings a fine troy ounce to 95s a fine troy ounce in the preceding two-year period, the mining companies tried to cut their operating costs by decreasing average wages - mainly by weakening the 'colour bar' (racial segregation of the workplace) to enable the promotion of cheaper black miners to skilled and supervisory positions. In 2012, following a sharp drop in the world price of platinum, seething tensions as a result of dire living conditions, union rivalry, and company disinterest, trade unions sought a minimum entry-level wage of R12,500 per month which bore no relation to the sector's financial position.

"What should have been done to avoid the impasse?" he asks. "When any unresolvable civil dispute between private parties arises, it must be referred to the courts. This is how everything from acrimonious divorces to hostile takeovers is addressed."

In the current platinum mining dispute, the Labour Court shouldn't have referred matters back to the parties, and the mining companies should have applied for leave to appeal the lower court's decision to the Labour Appeal Court. Ultimately the matter should have made it to the Constitutional Court. The Constitutional Court is the only neutral arbiter in the country that is capable of counter-balancing the right of workers to strike against the right of business enterprises to trade, both of which are enshrined in the Constitution (sections 23 and 22 respectively). There is, unfortunately, no hope that mining companies will pursue aggressive litigation against trade unions, precisely on account of the governmental inference that has plagued the strike since its initial days.

He notes that South Africans' hope a resolution must lie with the Farlam Commission of Enquiry, for two reasons:


Firstly, a Commission of Enquiry has considerable powers, generally greater even than those of a judge and restricted only to the Commission's terms of reference. The Commission is created by the head of state, and in practice, once a Commission has started the government cannot stop it. The head of state is obliged to implement the recommendations of the Commission, and failure to implement its recommendations would be all but impossible, given the constitutional litigation that would inevitably ensue. "A Commission, in other words, is a politically advantageous and effective alternative to long-range political back and forth that yields no conclusion, of the kind that we are observing in the present strike," says Loane.

Secondly, the Marikana Commission of Enquiry may yet reach a surprising conclusion. He adds, "Retired judge Ian Farlam is patron of the Centre for Constitutional Rights, with a diverse and pioneering professional history. He may seek to make his mark on South Africa's labour relations history and, if so, we will see the most significant about-turn in labour relations since the 1979 Wiehahn Commission."

There are several things that judicial activism - whether through the Farlam Commission or the Constitutional Court - could helpfully address. Ballots ahead of a strike, held in secret rather than by a show of hands in order to avoid intimidation. Civil liability for trade union members' damage to property and injury to persons, following from a view that trade unions are juristic persons and that their officials and/or members are (much as company directors are) jointly and severally liable in civil suits. An end to closed- and agency-shop agreements, which force workers to join a union or pay union dues as a precondition for obtaining a job, as unlawful monopolistic practices. Civil liability for the South African Police Service for failing to protect willing workers against intimidation. Special protections for private security companies who assist willing workers to return to work.

All of these initiatives, and probably many more that thoughtful judges could come up with, would represent a marked turnaround in South Africa's labour relations regime.
"As South Africa has the world's highest rate of violent and protracted strikes, judicial activism rather than judicial impotence is undoubtedly called for," Sharp says.

distributed by