Abstract
South Africa currently allows labour broking although this area of commerce is problematic. The trade union movement, government and organised business are presently debating the future regulation of this industry. Namibia has experimented with, and failed, to place a legislative ban on labour broking. The Supreme Court of Appeal of Namibia considered International Labour Organisation conventions and provisions of their Constitution before concluding that labour broking should be regulated but not prohibited. In this article it is argued that South African policy makers can gain valuable insights from the Namibian experience. It is submitted that it would be appropriate for Parliament to take cognisance of international and foreign principles and to accept amendments that would provide for stricter regulation for labour broking, rather than placing an outright ban on this economic activity.
Highlights
Role-players in the South African labour fraternity over the past number of months have been involved in a robust debate regarding the regulation of "temporary employment services"1
South African courts are not bound by decisions of foreign jurisdictions, I suggest that South African policymakers may gain valuable insights into the arguments that may, in all probability, be raised in the South African context, should it be decided to place an outright prohibition on labour broking
What might not have been expected, was their balanced stance regarding the real need for the regulation of the industry and that they reached a memorandum of understanding with the second largest trade union federation, Federation of Unions of South Africa (Fedusa), about an agenda regarding the regulation of the labour broking industry
Summary
Role-players in the South African labour fraternity over the past number of months have been involved in a robust debate regarding the regulation of "temporary employment services" (for ease of reference "labour brokers"). Supreme Court of Appeal (SCA) of Namibia recently held that a blanket prohibition on labour broking is unconstitutional under their legal framework. The purpose of this discussion is to compare the situations in South Africa and Namibia and to determine whether South African policymakers can learn any lessons in the run-up to the finalisation of amendments to the LRA.
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