Announcement of Labour Law Challenge - Herman Mashaba






Master of Ceremonies

Members of the board of the Free Market Foundation

Executive team and staff of the foundation

Members of the Press

Members of the foundation present here today

Distinguished guests

Ladies and gentlemen


I feel particularly honoured and also humbled to be addressing you here today on the occasion of the Free Market Foundation making this important announcement to challenge the current labour legislation.

Freedom comes in different forms. This labour law challenge that we are describing today is all about giving people the freedom to decide for themselves what kind jobs they want to do, what amount of pay they are prepared to work for, and what conditions they are prepared to work under. It is about their freedom to make their own decisions about their own lives.

It’s about the right of unemployed people to decide what jobs they consider to be better than no job at all. It is about their sole right to decide what job is a “decent” job. No one has the right to take away that decision-making power from desperate people. It is evil to do so.

In 1980 I rebelled against the apartheid system with all its laws that denied us the freedom to make our own decisions about our own lives; a system that stopped people from achieving their true potential. At the age of 20, I abandoned my university studies because of my rejection of the apartheid political system. I wanted to help to bring about freedom for our country. I decided to go for military training so that I could help to fight for our freedoms. In the end I could not get out of the country because I did not have the right contacts to get me over the border, such as my FMF colleague, Temba Nolutshungu, who did smuggle people out of the country.

I ended up deciding that under apartheid conditions I could gain the most freedom for myself by going into business, which I did, despite the legislative framework that barred blacks from venturing into business. Using business as a vehicle turned out, for me, to be the best route to freedom, the best way to escape the constraints of the apartheid laws that weighed so heavily on all of us.

Now, 33 years later, I find myself again fighting for freedom, this time not for myself but for millions of unemployed people in our country. In our democratic South Africa I find myself again in a situation where I have to object to laws that I find unjust. I am, however, proud today because I do not have to undergo military training to challenge these unjust laws. We have a sound legal system and courts that are guided in their decisions by the rule of law. I am convinced that they will not allow injustice towards our country’s poorest people to continue. Credit goes to all who made it possible for us to live under this democratic dispensation, including our current Government whose members led the fight against the apartheid regime. Today we use our constitutional and human rights to correct the wrongs in our country.

Note that it is a free market organisation with a Chairman who is a declared capitalist that is fighting for the rights of our poor people. If you take careful note of the activities of the Free Market Foundation you will find that we are always arguing for justice for all and especially the rights of the poorest and most vulnerable people in the country. I and my colleagues could not live with ourselves if we did nothing to assist the poor unemployed who are being prevented by the labour laws from getting jobs.

There are more than 7 million South Africans who do not have jobs. In the absence of our strict labour laws, no one who really wants to work will be without a job. You can compare making progress in a job with climbing a ladder. The most difficult part is to get onto the first rung of the ladder. If you can’t get onto the first rung you can’t climb the ladder. That is the problem experienced by the huge number of unemployed young people in this country. They are prevented from getting onto that first rung. And if at any time you fall off the ladder you must not be stopped from getting back on again.

The other side of the problem is the punishment that households and small businesses, in particular black business, receive when they don’t strictly observe the labour laws. Common sense does not apply. They have to study the labour laws or pay labour experts to keep them out of trouble. We have seen in the Newcastle example that it does not matter if the workers are happy with their wages and working conditions. If the employers are not meeting the requirements of the labour laws they get punished and even closed down and their employees lose their jobs. When common sense goes out of the window it is not surprising that people stop employing labour and start buying machines.

In the past 20 years we have not seen growth of small and medium-sized black-owned businesses that comes anywhere close to the rate of growth of such businesses in other countries. South Africa fails dismally in business and job creation and the labour laws play a significant role in that failure. Entrepreneurship and new jobs are both casualties.       

The labour unions should be in favour of any measures that increase the number of working people because it gives them the opportunity to sign up more members. They should therefore support our initiative.           

The FMF, after serious consideration, took a bold decision about a year ago to use the courts to compel our lawmakers to review some aspects of these devastating laws. It was not an easy decision, but very necessary for the future of our beautiful country. The result is the court challenge we are describing to you today. We took this decision to demonstrate our commitment and loyalty to our country.

You will next be hearing from Johnny Goldberg, part of the legal team representing us in this case, and economist Neil Rankin, who has done a study of the labour laws in support of the case.

Please allow me to give the floor to Johnny Goldberg to present an overview of the case.

And I thank you


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