An Accident of History: Who Is (and Who Should Be) an Employee under South African Labour Law
![handle is hein.journals/iljuta25 and id is 841 raw text is: An Accident of History:
Who Is (and Who Should Be) an
Employee under South African
Labour Law
PAUL BENJAMIN*
'These definitions ... [of who is an employee in South African labour statutes] ...
are open to an expansive interpretation, but the courts have preferred to interpret
them conservatively.1
The publication in 1979 of the first part of the Report of the Wie-
hahn Commission marks the start of modern South African labour
law. Before the end of the year, the Nationalist government had ac-
cepted the commission's advice on how to respond to the emerging
independent trade union movement and enacted those recommenda-
tions into law. Trade unions admitting black workers as members
could register under the Industrial Conciliation Act 28 of 1956
(ICA) and participate in statutory conciliation and collective bargain-
ing. An industrial court with wide-ranging unfair labour practice
powers was also established.
But everything did not go to plan. While the independent trade
unions eventually registered, this did not lead (as the Wiehahn Com-
mission and the Nationalists had hoped) to the unions keeping out of
politics. By 1994, the independent trade union movement, together
with its alliance partner, the African National Congress, had com-
menced the post-apartheid reshaping of South African labour law.
By 1999, the first democratic parliament had enacted four labour sta-
tutes to give effect to the constitutional promise of protecting labour
rights and to overcome the apartheid inheritance of workplace discri-
mination and skills shortages. The era of Wiehahn was over.
While the labour law reforms of democratic South Africa have
reduced the Wiehahn Report to a document of historical interest, a
court decision published earlier in 1979 continues to play a major role
in determining which workers receive the protection of post-apartheid
labour law. That decision, like much of South African law, stems from
a car accident. In August 1960 Mr Smit, a travelling insurance sales-
man, was seriously injured while driving to see a client. He claimed
compensation under the Workmen's Compensation Act but the
* BA LLB (UCT) LLM (Warwick); Attorney of the High Court of South Africa; Director,
Cheadle, Thompson & Haysom c; Professorial Fellow, Institute of Development and Labour
Law, University of Cape Town.
SM Brassey Employment and Labour Law 1 B:iii.
787](ViewImageLocal?handle=hein.journals/iljuta25&div=105&collection=&method=preview&ext=.png&size=3)
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An Accident of History: Who Is (and Who Should Be) an Employee under South African Labour Law
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