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Judge Andre’ Van Niekerk

Capacity: Judge
First appointed as a judge: 1 January 2009 (Labour Court)
Further Appointments: Labour Appeal Court (2023)
Gender:  Male
Ethnicity: White
Date of Birth: June 1957
Qualifications: BA (1978) LLB (1980) Cert.(Industrial Relations)(1987) LLM cum laude (1990)(Wits University) MA cum laude (Applied Ethics)(2009)(Leicester, UK).

Key judgments:

Candidate Biography | Updated October 2023

Judge André van Niekerk is a judge of the Labour Court, Johannesburg.

Few people have had as profound an impact on a single area of the law as Judge André van Niekerk has had on labour law in South Africa. As an attorney, legislative draftsman, arbitrator, academic, corporate counsel and judge, van Niekerk has devoted his life’s work to the advancement of labour law jurisprudence.

The lanky van Niekerk completed BA and then LLB degrees at Wits University (in 1978 and 1990, respectively) before he starting his legal career as a candidate attorney (articled clerk) at two Johannesburg law firms between 1982 and 1984. It’s not clear whether he was conscripted to 2 years’ of military service, which was required at the time. However, from 1984 to 1986 he served as associate attorney at ‘Big 5’ law firm Webber Wentzel, working in its employment law department.

From 1986 he joined mining conglomerate Anglo American as a corporate legal advisor, initially in its gold division but later as a senior labour consultant to entire company, reporting directly to the Executive Director. He would stay in corporate right through South Africa’s democratic transition in 1994.

While working at Anglo American, van Niekerk was appointed by the Minister of Labour to the rules board for the then Industrial Court. His most significant ministerial appointment however was to draft a new Labour Relations Act for a new South Africa. The new act would usher in a new labour regime that balances the interests of worker and employers, and would have fairness and respect for dignity at its core. The new LRA was passed in 1995, transforming the Industrial Court into the Labour Court, and creating a new Labour Appeal Court.

In a further ministerial appointment, in 1996 van Niekerk was appointed to draft new rules for both the Labour Court and Labour Appeal Court.

In 1998 van Niekerk returned to practice as a partner at a Sandton-based law firm, where we would spend the next decade specialising in employment and public policy law.

In addition to being a skilled practitioner, van Niekerk is equally well-regarded as an academic. He has been appointed as a visiting or extraordinary professor at the universities of  South Africa (1995 – 1997), Johannesburg (2001 – 2009) and Witwatersrand (2002 – 2015).  As an academic van Niekerk has several publications to his name: two sole-authored books, three co-authored books, two book chapters and 64 journal articles and casenotes.

Appointed as a judge of the Labour Court in 2009, van Niekerk has written a staggering  210 reported judgments. Only 22 of these have been taken on appeal and only 10 of them have been set aside – an incredible feat! Several of his judgments have been confirmed all the way in the Constitutional Court.

Several of van Niekerk’s judgments have been the subject of academic research and criticism.

His judgment in Avril Elizabeth Home – on the test for fair procedure in workplace disciplinary hearings –  has been the subject of several postgraduate thesis and dissertations, including serving as the basis for CCMA guidelines.

His judgment in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd was criticised in an academic paper published in the Potchefstroom Electronic Law Journal titled “The role of the labour court in collective bargaining: altering the protected status of strikes on grounds of violence”. The authors argue 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.”

Recognising the rapidly changing world of work and new ‘Uber’ or ‘gig’ economy, van Niekerk ruled in Simnye Workers Forum that the Registrar of Trade Unions must register as a trade union a workers’ association that organizes workers in ‘precarious employment relationships’. This is in contrast to his judgment in Uber South Africa Technologies v NUPSAW where he dismissed, on the technical grounds of a lack of jursidiction, a claim by Uber e-hailing drivers who sought to be recognized a protected by law as employees instead of independent contractors. Although he dismissed the case, he left open the question of whether the Uber drivers are indeed employees.

Earlier in his career, van Niekerk was extensively involved in developing International Labour Organisation standards on workers’ privacy, arbitration rules, and standards for judges and law teachers. He also advised the ILO on labour system developments in Botswana, Malaysia, and Swaziland.

Had it not been for a statutory provision in the Labour Relations Act (which was deleted in 2019) that prevented labour court judges from becoming judges of the Labour Appeal Court, there is no doubt that van Niekerk would’ve made an even greater impact on labour law jurisprudence. He now remains with less than five years to make that impact.

October 2023 Interviews

Judge Andre Van Niekerk’s October 2023 interview for a position on the Labour Appeal Court was successful. He was nominated for appointment.