I spent 11 weeks as a fellow with the South African Society for Labour Law (SASLAW). It would be an understatement to speak of the experience as a transformative one. As it would be inadequate to describe it as life-changing. While both those statements are entirely true, they do not encapsulate the depth of learning, the personal and professional growth or the intensity of these 11 weeks in South Africa SASLAW is a non-profit organization, operating in the labour law sphere in South Africa. I worked specifically on their pro bono project, which provides free legal advice to indigent clients. They do this through pro bono advice clinics at the various Labour Courts in the country. The Labour Court is a specialized court, dealing with labour law matters and has the same seniority as the High Courts (Superior Court equivalent). Through the fellowship, myself and the two other fellows spent 2 days/week at the clinic, shadowing the attorneys on call. The clinic is staffed by one permanent attorney and an administrator, but the advice to clients is given by a rotating roster of attorneys from law firms that partner with SASLAW. We assisted the attorneys with drafting condonation applications, affidavits, notices of contempt, review applications, letters to employers etc. While the Labour Relations Act in SA is not too different from its Canadian counterpart, the context in which it operates makes it implementation and enforcement entirely different. On one level, labour rights (the right to fair labour practices, protections against unfair dismissals, the right to strike etc.) are explicitly constitutional rights -- something completely unheard of in Canada, where our Charter promises no socio-economic rights. However, this robust legal protection of labour rights is countered by the difficulties in their enforcement. The exceptional nature of the wealth disparity and the consequent power imbalance between employers and indigent employees in combination with immense maladministration often mean the employees are not able to access their labour rights. We saw the unfortunate outcome of this resource inequality every single day at the clinic, where employees with meritorious cases against their employers often would not get the compensation they were due. They may not have referred their dispute to the arbitration commission on time, thereby missing their window of opportunity to claim. Or they would have referred on time, gotten an arbitration award in their favour and then be put in limbo because the employer was taking the award on review to the courts. Even worse, some employees would win at all levels, have a court order in their favour, and then still not get their compensation because the order would not be enforced by the sheriff. In all these scenarios, the employers benefit from having well-versed legal counsel dealing with the prolonged litigation, while the employee fumbles to figure it all out alone. Seeing these cases come through the pro bono office week after week

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showed me how little rights mean without adequate enforcement mechanisms. The pro bono clinic is making strides in addressing this gap in the access to justice, but the reality is that the demand for legal advice far exceeds the resources available. The three days not spent at the pro bono clinic were spent with law firms in the city. We rotated to a different firm every single week and will have visited the top 12 firms in the country by the time we are done. While the three of us very much align ourselves with employees and unions, this insider look at employer side legal work was critical to our understanding of the big picture. We had access to the country’s preeminent labour law practitioners, allowing us to ask questions and understand labour law from very senior attorneys. We spent our time in firms shadowing attorneys at client consults, on site with clients, doing research, going to the Labour Court, the High Court, and the Constitutional Court, attending arbitrations, attending internal disciplinary hearings and meeting counsel. Through the course of these varied experiences, we were exposed to all aspects of labour law in SA, from the initial internal hearings all the way up to the highest court in the land, and every step in between.

A brilliant African sunset from the Webber Wentzel roof

The extremely unionized nature of the workforce in South Africa adds to the complexity of labour law there. Unions were instrumental to the struggle against the apartheid regime and remain formidable forces in the country. Striking to demand things from employers is extremely

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common; the right to strike is, in fact, constitutionally protected. While this right is meant to be exercised peacefully, strikes in South Africa are inherently violent and often destructive. This leads to dismissals and questions about whether a strike remained “protected,” in which case an employee could not be dismissed for participating. The relevance of this context to our work was two-fold. In the clinic we dealt with the employees dismissed for striking in order to help them show that the strike was lawful. In the firms we saw the employers create arguments to show that the strike in question was not lawful and protected. In all of this, we saw the animosities the violent striking deepened between employers and unions as well as employers and employees.

Left: Visiting Congress of South African Trade Unions HQ Right: Meeting Joseph Mathunjwa, President of the Association of Mineworkers and Construction Union and SA’s most notorious trade unionist.

Having canvassed the things we did in our 11 weeks in South Africa does not capture the intensity of the experience or the immense amount of learning that the three of us went through this summer. Capturing that requires an understanding of the larger socio-economic background against which the labour law in this country plays out. Post-1994 South Africa continues to

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suffer from immense inequality, along largely racial lines. The layers and levels of inequity and oppression from the apartheid regime continue to manifest themselves in life in South Africa, not least of which in the employment sphere. Add to these questions of race relations, the current economic downturn and the immense corruption resulting from a decade of state capture and we are left with more questions than answers at the end of our time here. Everyday we learned about a new facet of the bigger picture and every day we asked ourselves how we could contribute to bridging the inequality gap in a way that would actually help people. Most days we did not have answers. However, the uncertainty and constant questioning has equipped us with critical thinking skills that we will certainly bring back to Canada. We hope to continue learning and asking uncomfortable questions.

Top: Visiting the Constitutional Court Right: At the SASLAW annual conference in Durban

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IHRP Report: South African Society for Labour Law (SASLAW) Johannesburg, South Africa

Erica McLachlan JD and Master of Public Policy Candidate, 2021

University of Toronto, Faculty of Law

I. INTRODUCTION

For the summer of 2019, I participated in the International Human Rights Program Fellowship with the South African Society for Labour Law (SASLAW) in Johannesburg, South Africa along with two other students from the University of Toronto Faculty of Law.1 Throughout my internship, I spent two days each week assisting labour attorneys at the SASLAW Pro Bono Clinic in Johannesburg, which was located at the Labour Court in Braamfontein, and three days each week conducting research and shadowing attorneys at various partnering law firms in the city as they attended client meetings, appeared in court or represented clients at the Commission for Conciliation, Mediation and Arbitration (CCMA) and other adjudicative bodies established under the Labour Relations Act (LRA).2

At the clinic, I supported attorneys

giving legal advice to indigent clients, and researched and drafted legal documents, such as affidavits, notices of motion, heads of argument, contempt applications and condonation applications, among others. Given that the clinic is located in the Labour Court, I also had the chance to spend time in chambers with the judges and observe court proceedings. At the law firms, I conducted legal research, drafted memoranda, created template policies for clients, delivered presentations and

attended various types of proceedings. I gained significant advocacy and direct client-facing experience, and learned a great deal about labour policy, the substantive law, history and broader social context in South Africa.

II. BACKGROUND

SASLAW is a not-for-profit organization whose mission is to promote the advancement of labour law as an academic and professional discipline, through seminars and its annual conference, and to encourage collaboration between experts. It serves as both a professional association for those engaged in work related to labour 1 South African Society for Labour Law, online: < https://www.saslaw.org.za/>. 2 Commission for Conciliation, Mediation and Arbitration, online: <http://www.ccma.org.za/> and Labour Relations Act (LRA), Act 66 of 1995.

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