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Judge Andre Van Niekerk


Current Position: Judge at the Labour Court

Candidate bio:

Labour Court judge Van Niekerk was part of the task team which drafted the Labour Relations Act, promulgated in 1994, and the Labour Relations and Basic Conditions of Employment Amendment Bills (2001) — so he should know that part of the law very well.

His judgment in the 2016 matter, National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) was however criticised in an academic paper entitled “The role of the labour court in collective bargaining: altering the protected status of strikes on grounds of violence in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC)”.

The authors argued that, while well-reasoned, the judgment reached the “questionable conclusion that it has the power to declare protected strikes unprotected on the grounds of violence”. The authors contend that although the decision can be commended for cautioning against the abuse of interdicts in the intricate balance of collective bargaining, and for seeking alternative judicial remedy against strike-related violence, it was “disappointing” that “the court considered the possibility of the alteration of the protected status of a strike which would invariably have swung the scales in favour of the employer.”

At issue in the 2008 matter, Discovery Health Ltd v Commission for Conciliation, Mediation & Arbitration & Others, was whether a foreign national who worked for another person without a work permit issued under the Immigration Act, was an “employee” as defined by the Labour Relations Act.

Discovery Health had argued that since the foreign national ’s contracted was “tainted with illegality (the foreign national did not have a work permit)” it was invalid and the person concerned was not an employee as defined by the Labour Relations Act (LRA).

“What this enquiry raises is the question whether the definition of ’employee’ in … the LRA is necessarily underpinned by a common-law contract of employment,” observed Van Niekerk.

He then held that “the right to fair labour practices is a fundamental right. There is no clear indication from the terms of s 38(1) of the Immigration Act (or any of the Act’s other provisions) that the statute intends to limit that right, or accomplish more than to penalize persons who employ others on unauthorized terms. … [T]he Act does not penalize the conduct of any person who accepts or performs work that is not authorized. The Act does not explicitly proscribe contracts concluded with those who are engaged to render work in circumstances where their engagement is unauthorized, nor does it provide that contracts are not enforceable in those circumstances.”

Van Niekerk J held that there were sound policy reasons for construing section 38(1) of the Immigration Act so that it did not limit the right to fair labour practices, and that the impugned was valid, and remained so until terminated by the applicant.

He found that the affected party was indeed an employee and the CCMA did in fact have “jurisdiction to determine the unfair dismissal dispute referred to it.”

The application to review the commissioner’s ruling was dismissed. A 2009 article entitled “Migrant Workers and Occupational Health and Safety Protection in South Africa”, described the judgment as a “purposive interpretation [that] is in line with the constitutional imperative to protect fundamental rights, such as the right to fair labour practices.” The decision is also described as showing “a judicial readiness to extend fundamental rights to migrants.”
The fifty-one-year-old Van Niekerk obtained a BA (1979) and LLB (1979) from the University of Witwatersrand. He also has a certificate in industrial relations from Wits and an LLM with distinction from the University of Leicester.

After completing his articles Van Niekerk worked as an attorney, including as a legal advisor for Anglo American from 1986-1998. he has acted at the Labour Court form 1999-2008, before his permanent appointment in 2009. He has acted at the high court in 2014 and 2016. He is a founder member, and president for life, of the South African Society for Labour Law.