Labour dispute resolution in southern Africa : a study of emerging trends and realities in Botswana, Lesotho and Swaziland

Abstract

This study is about labour dispute resolution in Botswana, Lesotho and Swaziland. The study involves an extensive examination of the political philosophy, methods, structures and rules of engagement comprehensively described as 'emerging' trends. It concerns labour relations in developing African countries and is necessarily located along the continuum of the socio-legal and historical context of each country. The study asserts that there is an indisputable connection between the past colonial state and the post-colonial state. It contends that the post-colonial elite openly assimilated the regulatory legal framework of the colonial master and consolidated this framework soon after independence. The study therefore examines the mode of buttressing the status quo and the sustenance of command and control inherent in labour legislation. This tendency was rationalised by a misguided fear that those advocating for reforms, particularly those with economic power exerting a diluting influence on the dominant position of the state. The research demonstrates how such orientation accounts for subsequent reluctant tinkering with transformational efforts. It also resulted in sporadic, reactive and generally incremental concessions in the direction of workplace democracy. Essentially, this study is about societies in conjunction with law. Inferentially, this means the impact of legal rules and agencies on society in the finding of solutions to societal problems. The study is not based on an assumed premise on the basis of which a credibility test may be made or comparisons drawn. The study sets out to study each society as a unique, discrete entity within a particular blend of social, historical, political and legal contextual permutations. The primary objective therefore is to examine and try to understand and appreciate the strengths, weaknesses, threats and both missed and potential opportunities of each, in addressing a specific social issue such as labour disputes. This study adopts a 'law in context' approach as a sub-text within the broad framework of socio-legal studies. It does not derive from any abstract theoretical hypothesis. It is not based on any quantitative survey approach that warrants the administration of questionnaire. It is strictly an academic observation of distinct, discrete social formations. These are then considered as in transition along the continuum of their socio-economic developmental trajectories. It also ascertains the ground realities such as the political economy of labour disputes. This study required an interdisciplinary perspective, using a sociological approach to the study of law. By consciously focusing on the central institutions of substantive law, it demonstrates the weakness of law's claim to autonomy, its factual interpenetration of all levels with more general structures of government power, In effect, the conclusion drawn is that the attempt at effective dispute resolution, via the instrumentality of legislation, can lead to juridification, the multiplicity of institutionalised structures, over- administration and eventual dysfunction

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