Free Market Foundation v Minister of Labour (13762/13) [2016] ZAGPPHC 266 [2016] 8 BLLR 805; (2016) ILJ 1638; [2016] JOL 35802 (HC) (4 May 2016) per JR Murphy J [KE Matojane J and AC Basson J concurring].

Job seekers fall outside the ambit of collective bargaining.  The High Court identified the problem of high levels of unemployment and negative social consequences.  The Free Market Foundation’s focus on this social problem was accepted by the High Court by refusing to award costs again the Foundation despite failing to obtain an order curbing the powers of the Minister of Labour.

Issues discussed at pages 52, 296 and 326 by Du Toit et al in Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis, 2015).

Section 23(5) of the Constitution reads:

“Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).”

But where does this leave job seekers who are outsiders and unable to apply for exemption from any bargaining council agreement that has been extended to non-parties by the Minister of Labour?



    1. With regard to the question of costs, while the FMF application has been shown in a number of respects to be misconceived, and fundamentally so, I have no doubt that it was motivated by the best of intentions. Our country prides itself in the promotion of a strong civil society.  Although there will be many opposed ideologically to the classic liberal and free market agenda advanced by the FMF, there should be no quibble with its activism on behalf of small business and the unemployed.  The most intractable social and economic problem facing our country is the persistently high level of unemployment and its attendant negative social consequences.  There are differing views about how to solve it.  Many will argue that as a society we need to think outside the box and cannot simply continue with business as usual.  The FMF is intent upon challenging the prevailing dogma.  It does so as a morally responsible citizen whose opinion, if not heeded, deserves at least to be heard.  We need not look back far into our history to recall that the censured opinions of today may well become the moral directives of tomorrow.  As the Constitutional Court said in S v Mamabolo, [2001 (3) SA 409 (CC) para 37] the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way.  For that reason civil society activists should not be discouraged from pursuing constitutional claims for fear of being mulcted in costs. [Biowatch Trust v Genetic Resources 2009 (6) SA 232 (CC)].
    1. Moreover, although the FMF’s constitutional argument, no doubt crafted by Mr Brassey, misses the mark, that in no way detracts from its elegance and admirable ingenuity. It might not have yielded what the FMF asked for, but by compelling the debate in the way it did, the application in its result has usefully demarcated the parameters of power and administrative justice in the legislative scheme governing collective bargaining at sectoral level.