Ruling linked to broking rethink

Johannesburg - A recent court ruling in Namibia may be the reason why South African authorities have put brakes on plans to ban labour broking, after initially setting a deadline to introduce a bill by April.

Labour Minister Membathisi Mdladlana on Tuesday said the introduction of a bill would be delayed, as parliament needed to decide whether it would recommend a total ban or strict regulation of the practice.

Mdladlana also sounded a change of tune from his department's previous stern call for the total banning of labour broking. He made a distinction between professional and unscrupulous brokers, with the latter needing a straight ban.

Joe Mothibi, director and head of employment and labour law division at law firm Deneys Reitz, pointed to a Namibian Supreme Court ruling in December 2009. This declared that a total ban on labour broking was unconstitutional. Mothibi suggested the situation may be the same for South Africa, given similarities in the two countries' constitutions.

Following a legal challenge by Africa Personnel Services, a labour broker operating in Namibia, the Namibian Supreme Court ruled that banning the practice unreasonably restricted free economic activity, a right guaranteed in the country's constitution.

"We have a similar provision in our constitution. Parliament is probably alert to that constitutional clause," said Mothibi. "Considering that makes it very hard to ban labour brokerage and I suspect that they will probably go for greater regulation.

"The best thing is to put in place proper means of enforcement, because it doesn't help to change the law if you are not going to enforce it."

Trade union federation Cosatu has been on the forefront of the campaign to outlaw labour broking in SA, citing Namibia as an example to follow.

Cosatu spokesperson Patrick Craven said the federation was "encouraged" by signs that government was taking on the matter, and did not think the Namibian court ruling or difficulties with terminology should warrant a change of tune.

What was important for the federation was that legislation needed to be drafted in a manner that effectively outlaws the practice.

Alias Monage, president of the Confederation of Associations in the Private Employment Sector and a director at Kelly Group, said there was still room for negotiations between all stakeholders as there were too many implications on the banning proposal.

"There must be finality on this issue," said Monage. "We need to go back to Nedlac [the National Economic Development and Labour Council] and sombrely define all particular forms of employment."

- Fin24.com