Abstract
South Africa’s Constitution promises fair labour practices, equality and dignity to “everyone”, yet millions who eke out livelihoods as street traders, domestic workers, waste pickers and platform drivers still fall outside the reach of post-apartheid labour statutes that hinge on a bilateral employee-employer model. Drawing on a qualitative doctrinal methodology, this paper interrogates the role of South African courts in narrowing that protection gap and assesses whether judicial innovation alone can realise the Constitution’s transformative vision. It analyses key judgments Makwickana v eThekwini Municipality, South African Informal Traders Forum v City of Johannesburg and Mahlangu v Minister of Labour alongside earlier cases such as Discovery Health v CCMA and Kylie v CCMA. The study shows how judges deploy five mutually reinforcing strategies: (1) purposive expansion of statutory definitions; (2) reliance on substantive-equality and dignity clauses; (3) incorporation of international labour standards, notably ILO Conventions 87, 98, 189 and Recommendation 204; (4) invocation of administrative-law norms of proportionality and procedural fairness; and (5) creative remedial orders, including structural interdicts and retrospective benefits. While these interventions have yielded tangible gains reduced confiscations of traders’ stock, retrospective injury cover for domestic workers and reinstatement of thousands of vendors implementation is stymied by an under-resourced inspectorate, fragmented municipal governance and low worker organisation. Comparative insights from India, Brazil and Kenya illustrate that inclusive statutory definitions, simplified registration and formal recognition of informal-worker associations are essential complements to litigation. The paper therefore recommends an Informal Work Protection Act, amendments to core labour statutes, a one-stop registration portal and an informal-worker chamber in NEDLAC to embed constitutional jurisprudence within a capacitated administrative framework.