The regulation of work : whither the contract of employment? : an analysis of the suitability of the contract of employment to regulate the different forms of labour market participation by individual workers

Doctoral Thesis


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University of Cape Town

The focal research question of this thesis is the relevance of the contract of employment in modern employment. In answering this question three broad areas associated with the contract are explored: (1) the evolution of the contract of employment in South Africa and the dichotomy between the contract of employment and the independent contract; (2) the forms of engagement of workers in the South African labour market; and (3) alternative regulatory models with specific reference to models that are consistent with the South African Constitution. Using a comparative approach it is shown that the contract of employment in South Africa is in a relative state of unification. However, some assumptions about its historical evolution and the influence of Roman and Roman-Dutch law are overstated, and more recent developments, such as tax legislation, arguably had a greater influence on the dichotomising of labour law. The study of the South African world of work illustrates that modern work is performed in diverse ways. After illustrating that labour law has both countervailing and social developmental roles, it is concluded that the contract of employment as traditionally understood is no longer capable of performing these roles. It is further claimed that a process of diversification (as opposed to the unification of the contract of employment) will help to redefine the contract of employment and this may extend the coverage of labour legislation to those who, bearing in mind the purpose of labour law, ought to be protected by labour laws. Finally, it is argued that the South African Constitution provides a ready paradigm within which to achieve such a process of diversification which would ultimately lead to an extension of the coverage of labour laws.

Includes abstract.

Includes bibliographical references (leaves 258-302).