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 Ind

ABSTRACT

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.

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