While international companies are keen to invest in South Africa, they are unable to meet the conditions of employment that have been extended to nonparties, forming part of the myriad of reasons why the the Free Market Foundation (FMF) is challenging the current “failing labour law”.

The FMF was about to face government, the Congress of South African Trade Unions (Cosatu) and 27 bargaining councils in a court case challenging the constitutionality of Section 32 of the Labour Relations Act (LRA). Speaking at a media conference on Tuesday, ahead of the court hearing, FMF lawyer Craig Kirchmann said the case was not about undermining collective bargaining.

He explained that Section 32 dictated that bargaining council agreements, reached between private parties, needed to be extended across an entire industry sector by Labour Minister Mildred Oliphant. The FMF sought to change one word in Section 32 from "must" to "may", which it believed would impact significantly on unemployment.

Kirchmann noted that the foundation expected the case to go to the Constitutional Court, where the FMF would find the relief it currently sought.

Also speaking at the briefing, Black Like Me founder and Democratic Alliance Johannesburg mayoral candidate Herman Mashaba said that government had destroyed small business through bargaining councils.

He added that pre-1994, black entrepreneurs had found creative ways to do business, but that this creativity was currently overshadowed by tenders and close links to government.

FMF director Leon Louw added that the foundation was hoping to see a withdrawal by opposing bargaining councils. He suggested that the Minister support the FMF’s stance and that she should not oppose it. Louw also reiterated Kirchmann’s statement that it was not opposing collective bargaining.

“We oppose the right of colluders to impose their collusive agreements on non-colluders. If we succeed, more people will be employed,” he noted.

Louw added that South Africa’s current labour law was the “perfect case study” of what other countries should not do and that there was much to be done to amend the current situation.

“We will start with the low hanging fruit and then we will move on to the tougher [clauses], until we have a labour law that works. South Africa’s labour law is the world’s worst case study, if anyone wants to know what not to do, then look at South Africa.”