Employment and Benefits

The drive by governments in Sub-Saharan Africa to stimulate employment, protect workers’ rights and address historical imbalances has produced a variety of distinct regulatory systems for employment in the region. This is made more complex by a strong culture of collective bargaining, and an overlap between labour and social issues, between strikes and social protest across the region.

We have been at the forefront of employment law in the region for many years.  We offer a breadth and depth of knowledge and experience in the fields of industrial relations, employment, employee benefits and pensions law in Africa that is hard to match.

According to Legal 500 we have, ‘a tremendous record in South Africa and East Africa, providing “excellent turnaround times”, “a professional service” and an “in-depth understanding” of clients’ businesses and subject matter’.

We keep our clients at the forefront of developments in employment laws, regularly contribute to employment law publications and provide training and present lectures in a variety of forums.

We deliver the following specialist employment law services across both the public and the private sectors in the African countries in which we operate.

• Employee engagement
• Investigations and employee risk management
• Business transfers, outsourcing and restructuring
• Industrial relations
• Dispute resolution

Chambers and Partners, 2022

‘has the capacity to handle multi-jurisdictional employment mandates’

‘distinguished employment group with tried and tested expertise in both transactional and contentious mandates’

‘demonstrates prowess in significant employee transfers and redundancies, as well as handling ESOP structuring for both listed and non-listed companies’

‘well placed to handle terminations and claims, including wrongful dismissal, as well as advising on employee incentive programmes’

‘Recognised for its adept handling of employment issues arising from corporate restructuring’

‘possesses a strong employment disputes practice and is also recognised for its experience in industrial relations and collective bargaining’

Legal 500, 2021

Client feedback includes:

‘Very strong employment law team that complement each other’

‘understanding of our business and practical and pragmatic approach’

‘Availability, knowledge and going the extra mile’

• We assisted the University of Cape Town (UCT) to implement a strategy to regulate trade union recognition in response to fragmentation of traditional union membership patterns, including urgent Labour Court litigation and strike interdict. UCT has suffered significant disruption in recent years from student protests, in part related to industrial relations and the change in trade union affiliations.

• We assisted Transnet SOC in opposing a class action by pensioners brought against the Transport Pension Fund, the Transnet Second Defined Benefit Fund and Transnet SOC seeking declaratory relief and related damages. This is the first class action certified in South Africa and the largest civil action claim in South Africa to date.

• We advised the Steel Engineering Industries Federation of South Africa (the primary union organisation in the steel and engineering industries) on the extension of previous collective agreements to non-parties in this industry, which had been set aside by the Labour Court on a number of occasions. It is extremely important to the stability of the industry that the current industry collective agreement is valid, enforceable, and capable of extension to non-parties. We were tasked with drafting an industry-wide collective agreement, determining the process for extension of the agreement to non-parties, and dealing with threatened litigation.

• We advised RTT Group (RTT) when its logistics services to a client were terminated and awarded to a competing contractor. RTT contended that Section 197 employee transfer provisions applied and that its employees were transferred automatically to the new contractor. This was an important principle to be established in light of significant turnover of logistics suppliers in the market.

• We helped Royal Bafokeng Platinum Mine successfully defend enforcement proceedings threatened under the Mine Health and Safety Act and the Mineral and Petroleum Resources Development Act.

• We advised Royal Bafokeng Platinum Mine on its acquisition of a concentrator plant and related surface rights (including the water and power allocations) in respect of the immovable property owned by Maseve Investments 11 Pty (Maseve) which may be required by RBPlat to access and operate the plant and access to tailings infrastructure, for a consideration equal to the ZAR equivalent of USD 58 million, and the acquisition of 100% of the shares in and shareholder claims owing by Maseve for a consideration equal to the ZAR equivalent of USD 12 million.

• We assisted Eskom Holdings by completing investigations into past corruption and the removal of various executives including former CEOs Matshela Koko and Sean Maritz. We further launched review proceedings to assist Eskom recover ZAR 1.6 billion from McKinsey and Trillian and have since been appointed to assist it with the Zondo Commission into State Capture.

• We assisted the Government Employees Medical Scheme (GEMS) with a multi-disciplinary investigation and provided advice involving forensic investigations, employment disciplinary proceedings, termination of certain contracts of employment and public procurement law.

• We advised Harmony Gold Mining Company on its USD 300 million acquisition of the Moab Khotsong Mine, the Great Noligwa Mine and related infrastructure from AngloGold Ashanti. We were named  Energy and Natural Resources Team of the Year at the African Legal Awards in 2018 for this work.

• We assisted Royal Bafokeng Platinum Mine to seek an interdict and declaratory relief compelling the transfer of employees following the termination of its outsourced mining contract with JIC/ ABMS. JIC/ ABMS is a contract miner that provided all the employees to run the mining operation. It denied that Section 197 automatic transfer provisions applied and refused to transfer employees.

• Bowmans acted for the purchaser in the acquisition of Valeant Pharmaceuticals International Inc’s iNova Pharmaceuticals business in a transaction affecting Australia, South Africa and Asia

• We provided strategic advice to a client in the FMCG sector on a significant restructuring programme involving redundancies, and related threats of industrial action and related forms of trade union opposition. The matter was important for the client because it signalled a significant exercise of managerial prerogative in an effort to restore efficiency, and it generated a significant risk of industrial relations instability.

• We are representing a major catering group on various claims of alleged unfair discrimination based on race and for equal pay for work of equal value. Four employees of the company allege that African employees are discriminated against at the company, and that African employees are remunerated less than employees of other races occupying the same roles.  The matter is important because of the potential financial impact if the claims are successful. 

  The employees are represented by the same attorney, so if any of the claims is successful there is a real risk of follow on or copycat claims.  The company employs approximately nine thousand employees.

• We advised a financial services firm in the banking sector on changes to the management team and board of directors in Botswana. The matter was complicated for two reasons: firstly, the board and the main shareholder were at loggerheads, and secondly, some of the executives were employed under South African law into a Botswanan company.  The client needed corporate and regulatory advice in Botswana and South African employment law advice.

• The client, an education institution, initiated investigations into allegations that administrative staff had taken bribes for mark changes and to admit students who did not meet the required threshold for admission.  We provided governance, corruption and regulatory advice; conducted investigations, and advised on discipline and dismissal proceedings, and made recommendations on mitigating risks of incidents of this kind occurring in the future.

  The importance of this matter lies in the potential reputational damage to the client rather than the monetary value of the fraudulent conduct.

• We have represented the client in a series of cases involving judicial review of arbitration awards where arbitrators had ordered the reinstatement of employees found guilty of petty theft of employer goods or property on the grounds that the arbitrator considers the sanction of dismissal to be too harsh for theft of goods of small value. 

  “Shrinkage” is a material issue for retailers and dismissal of guilty staff is the only effective deterrent.  For this reason the review cases are of material importance to the client in its capacity as employer.

• Advised Transnet on the labour relations framework for nine African countries, in order to assist in drafting terms and conditions of employment for staff who will be working in these countries. This reflects an increasing trend of clients moving into new jurisdictions across the continent.

• We are involved in a ground-breaking and complex multi-stakeholder facilitation including Anglo American South Africa Ltd, AngloGold Ashanti Ltd, Harmony Gold Mining Company Ltd, Gold Fields Ltd, Sibanye Gold Ltd, and African Rainbow Minerals Ltd, seeking resolution to a class action, and to establish future legal frameworks which are fair to employees and that ensure the future sustainability of companies in the gold mining industry.

• We advised the Public Servants Association of South Africa (the largest, politically non-affiliated trade union in the public service) on a matter directly impacting its members’ right to strike. We successfully asserted the union’s right to strike over unilateral changes to working hours of front office staff nationally by the Department of Correctional Services (employees being required to work on Saturdays without additional pay). The matter was ultimately heard by the Constitutional Court.

• Bowmans advised General Motors South Africa in relation to the disposal of its Isuzu business to Isuzu Trucks South African and related matters.

• Bowmans advised World Triathlon Corporation and Ironman Epic Holdings in relation to its acquisition from Kevin Vermaak, Moxie Marx Close Corporation of the entire share capital of Grandstand Management and Cape Epic, and all intellectual property owned by Moxie Marx CC, which together are responsible for the organisation and implementation of the “ABSA Cape Epic”, the world’s foremost mountain-bike stage race.

• Employment advice on the creation of Coca-Cola Bottling Africa (CCBA).  

  This included:

  • advice on the transfer of the business of ABI from SAB (Pty) Limited to ABI Bottling (Pty) Limited;
  • advice on the proposed organisational restructuring of the businesses of the various entities being contributed to CCBA as a result of the proposed transaction;
  • advice on union engagement in the lead up and subsequent to the creation of CCBA;
  • and advice on the Competition Commission process, including requests for information from the Commission, orders from the Tribunal pertaining to discovery, and input into Economist reports.

• We have continued to assist a major mining house in the conversion of defined benefit pension arrangements to defined contribution. This has involved advising on employment law consequences, negotiation of terms of conversion with pension fund Trustees, drafting and settling agreements and related communications to fund members and other stakeholders, and compliance with pension fund regulatory requirements and registration. 

  The matter is important because of its factual and legal complexity, because of the required engagement with multiple stakeholders, and because of the significant financial implications for the client.

• Represented Putco, a commuter bus company, in Constitutional Court litigation over the lawfulness of lock-outs in industry level collective bargaining. The matter concerned whether employers in an industry regulated by a Bargaining Council could lock-out members of a minority trade union not party to the Bargaining Council in response to an industry level strike called by majority trade unions.

• Bowmans advised Choppies Supermarkets in relation to the acquisition of the retail business of Jwayelani Retail sold as a going concern for a transaction value of ZAR 189 million.

• A senior executive economist posted a tweet on social media that was widely perceived to be racist.  A social media storm erupted which severely impacted the Bank’s reputation.  There was material political and reputational fallout, and the matter became the subject of significant debate in the mainstream media.  The Bank’s reaction to the incident and the steps it took to deal with it was subject to intense public scrutiny.  We acted for the Bank, providing strategic advice on dealing with the incident and its aftermath.  The steps it took in response included instituting internal disciplinary proceedings, and in the executive ultimately resigned from his employment with the Bank.

• Approximately 4 400 former mineworkers instituted claims for compensation against these clients for silicosis said to have been contracted while employed in their gold mining operations.  The clients were separately represented by other lawyers in the litigation.  We were instructed by the two clients jointly to advise them in a contemplated mediation process, to negotiate and conclude a mediation agreement, to set up a mediation process, to appoint a mediator and ultimately to negotiate a settlement of the matter. 

  We negotiated and concluded a mediation agreement, appointed a UK based mediator, and arranged the mediation in South Africa.  We prepared for and represented the clients in the mediation itself.  The matter did not settle at mediation, but following a series of further negotiations, in which we continued to represent the clients, the matter was settled.  The settlement agreements were ultimately concluded in early March 2016. 

• Our client, a global IT/ business process solutions company, headquartered in the US but with the majority of its workforce in India and the Philippines, established a call centre in South Africa to provide English-language customer experience support servicess to global clients, including to a UK based insurance client’s customers. 

  In addition to providing general employment advice with the establishment of the call centre we assisted with the negotiation and drafting of the contractual arrangements governing the secondment/assignment of the South African call centre staff to the UK based client, which required balancing the strict regulatory environment in South Africa relating to labour broking (agency work) and the challenges facing the insurance company from a UK regulatory perspective.

• We represented Eskom in appeals to the Supreme Court of Appeal, and subsequently to the Constitutional Court appealing an eviction order obtained from the North Gauteng High Court evicting persons occupying its accommodation premises around the Medupi power station and interdicting them from returning.  That order was necessary to enable Eskom to urgently repair its damaged security and access control systems at its accommodation premises so that they could securely accommodate contractor employees and avoid additional delays to the construction of the Medupi Power Station. 

  The construction of the Medupi Power Station is one of the most complex and important power generation projects under execution globally.  The cost of any delay is enormous.