Throughout history, various organisations have advocated for a national minimum wage which will be legally enforceable. This emanated from the unfairness and pay disparity based on discrimination that had been normalised in the workplace. As far back as 1955, these sentiments were echoed in the Freedom Chater under the declaration; “There shall be work and security!” It was further substantiated by providing that there shall be a forty-hour working week, a national minimum wage, paid annual leave, and sick leave for all workers, and maternity leave on full pay for all working mothers. These sentiments sought to ensure the protection of the lowest-paid workers from exploitation and to improve their wages.
It is thanks to such initiatives that we now have the National Minimum Wage Act 9 of 2018 (“the Act”). The Act was enacted for the purpose (Section 2) of advancing economic and social justice by improving the wages of the lowest paid workers, protecting workers from unreasonably low wages, and preserving the value of the national minimum wage, amongst others. In Section 1 of the Act, ‘‘wage’’ is defined as the amount of money paid or payable to a worker in respect of ordinary hours of work or, if they are shorter, the hours a worker ordinarily works in a day or a week, and ‘‘worker’’ as any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind. This piece of legislation applies to all workers from all walks of life in the country.
The Act also aligns with the views of the International Labour Organisation (“ILO”). The ILO is an international body which sets international labour standards and promotes social justice and decent work. The ILO has found that minimum wages are a common labour-market policy tool. According to the ILO’s resolution No. 135, minimum wages are one element in a policy designed to overcome poverty and to ensure satisfaction of the needs of all workers and their families. Furthermore, the fundamental purpose of minimum wage fixing should be to give wage earners necessary social protection. This aspect is reflected in Section 7 of the Act which requires the National Minimum Wage Commission to, amongst others, promote the alleviation of poverty and the reduction of wage differentials and inequality when reviewing the minimum wage and recommending adjustments, with consideration to various economic factors.
The Act makes it illegal for employers to pay workers anything less than the minimum wage. Although the minimum wage applies to every worker, save for those excluded by the Act, it was created with those workers with the least paid type of employment in mind, and in comparison, to inflation, in order to assist workers to be able to afford basic needs. It is for this reason that the Act establishes the National Minimum Wage Commission; which is responsible for the review of the national minimum wage and recommending adjustments, in addition to investigating and reporting annually to the Minister of Employment and Labour on the impact of the national minimum wage on the economy, collective bargaining and the reduction in income differentials, and making such information available to the public.
In the Constitutional Court case of Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24, the Court stressed the importance of protection of every worker within the broader labour legislations and thereby ensuring fair wage protection. The Act provides relief to those workers who have wage disputes against their employers. In the CCMA case, Siphokazi Mvambi and 4 Others v Crown Household (Pty) Ltd (GAEK10115-23) the Commissioner ruled in favour of employees in a matter where the employer decided to circumvent the Act. In this case, the employer changed the payment system from the normal minimum wage and instead introduced a “box system”. This system provided that employees will be paid based on the number of boxes they processed each day and daily targets were set in order for the employees to earn their salary. The Commissioner found that the employer had violated the Act and failed to comply with the Basic Conditions for Employment Act. The Commissioner ordered that salaries are to be calculated in terms of hours worked and not by set targets. As a result, the employer was also ordered to pay back the employees their outstanding wages. On an urgent basis, the employer sought to have the award set aside based on technicalities, however the Labour Court dismissed the application without going into the merits of the case.
The Act has been praised as a democratic instrument of social justice. It protects the rights of employees, and it is for every employer to comply with the minimum wage requirements. The national minimum wage is currently R28.79 per hour and has been approved and set at R30.23 per hour, effective 1 March 2026.
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Author: Phindulo Munyai | Associate Attorney
References:
- ILO, ‘Minimum Wage Systems’, International Labour Conference, 103rd Session, 2014 (International Labour Organisation, 2014)
- The Freedom Charter
- The National Minimum Wage Act 9 of 2018
- Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 2
- Siphokazi Mvambi and 4 Others v Crown Household (Pty) Ltd (GAEK10115-23) 4
