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121 S. African L.J. 902 (2004)
Fair Labour Practices in South African Insolvency Law

handle is hein.journals/soaf121 and id is 912 raw text is: FAIR LABOUR PRACTICES IN SOUTH AFRICAN INSOLVENCY LAW STEFAN VAN ECK* Professor of Law, University of Pretoria ANDRE BORAINEt Professor of Law, University of Pretoria LEE STEYNt Associate Professor of Law, University of KwaZulu-Natal INTRODUCTION The South African Constitution provides that 'everyone has the right to fair labour practices'.' The term 'fair labour practice' is not defined in the Constitution, yet this fundamental right encompasses far more than is expressed in the narrow definition of the term in the Labour Relations Act 66 of 1995 (LRA).2 While labour lawyers may instinctively grasp the concept of the right to fair labour practices without necessarily being provided with a comprehensive description of the right, insolvency practitioners may wonder what precisely this broad right entails, particularly in the context of an employer's insolvency.3 Insolvency lawyers are also likely to be curious as to how the right to fair labour practices achieved its prominent status, enshrined as it is in the statute that embodies the supreme law of the land. They may even experience a certain measure of apprehension by virtue of the fact that the drafters of the Constitution thought fit to entrench this central labour right which, in effect, encourages the placement of employees in a separate category of creditors of their employer's insolvent estate. The right to fair labour practices may potentially conflict with, or restrict, other fundamental rights that underpin the insolvency regime such as, for example, the right of creditors to be treated equally, as reflected in the pari passu principle, and also the property-based * BLC LLB LLD (Pret) t B lur LLB (Pret) LLM (Wits) LLD (Pret) BA LLB (Natal) LLM (Unisa) I Section 23 of the Constitution of the Republic of South Africa, Act 108 of 1996. 2 National Education Health and Allied Workers Union v University of Cape Town (2003) 24 ILJ 95 (CC) para 30; National Entitled Workers Union v CCMA (2003) 24 ILJ 2335 (LC) at 2339. See also, regarding the early development of the term 'unfair labour practice', Martin Brassey, Edwin Cameron, Halton Cheadle & Marius Olivier The New Labour Law (1987) chap 1 and T Poolman Equity, the Court and Labour Relations (1988) 1. I It is to be noted that this article is based on an unpublished paper delivered at the Insol International Academics meeting in Cape Town, held in April 2004, which was a follow-up on Andr Boraine & Stefan van Eck 'The new insolvency and labour legislative package: How successful was the integration?' (2003) 24 ILJ 1840.

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