8. The law and regulation of internships in South Africa Mahlatse Innocent Maake-Malatji 8.1 INTRODUCTION In South Africa, creating jobs and reducing the unemployment rate are key economic and social challenges.1 Although higher education is posited to be essential for economic and social development,2 graduates still face challenges when transitioning from education to work. Thus, graduates do not automati- cally find jobs immediately after completing their studies. Historically, black people in South Africa were disadvantaged by the apart- heid government and colonialism, which barred them from attaining a mean- ingful education and prevented them from acquiring the skills they needed to thrive in a changing economy.3 In addition, poverty has a great impact on individuals’ lives and can undermine individual success in the long run. This continues to feed into the struggle to achieve sufficient financial stability to pursue higher education and, unfortunately, those who do receive an education will still struggle to get jobs. The government attempts to counter this through initiatives such as the National Student Financial Aid Scheme, which assists students from disadvantaged families to pay for their tuition, food and accom- modation at colleges and universities. 1 Murray Leibbrandt, Ingrid Woolard, Hayley McEwen and Charlotte Koep, Employment and Inequality Outcomes in South Africa (Southern Africa Labour and Development Research Unit, University of Cape Town 2010). 2 Mpho Phago and Lebo Thwala, Baseline Study on Students’ Perceptions and Attitudes Towards the HWSETA Postgraduate Research Bursary Programme (HWSETA 2015), http:// www .hwseta .org .za/ download/ baseline-study -on -students -perceptions -and -attitudes -towards -the -hwseta -postgraduate -research -bursary -programme-full -paper/ , accessed 30 March 2021. 3 Siphokazi Koyana, Final Report on the Internship Baseline Study (South African Graduates Development Association 2013) 28, https:// www .dphu .org/ uploads/ attachements/books/ books _3612 _0 .pdf, accessed 30 March 2021. 130 Mahlatse Innocent Maake-Malatji - 9781800885042 Downloaded from Elgar Online at 09/27/2021 04:12:14AM via free access The law and regulation of internships in South Africa 131 Although for some time South Africa has been experiencing growth in its graduate labour force, the graduate unemployment rate has also been on the rise: the dilemma being that there are more graduates and fewer jobs.4 This is doubly problematic as it wastes scarce human capital and is detrimental to the economy in the long run.5 Although employers have embarked on a plethora of strategies to assist unemployed individuals to attain skills for the workforce at all levels,6 there is no evidence of their success. Internships were initiated to alleviate the shortage of skills within specific fields7 and to reduce the high unemployment rate. Since internships are subject to different terms and conditions in different sectors, interns face a variety of challenges in their employment journey, even though in particular cases they are regarded as employees by the law.8 Interns may render their services for no compensation or for only very low pay, which does not cover their cost of living and so does nothing to alleviate poverty. In order to combat graduate unemployment, internships have become one of the ways in which young people can be offered structured entry-level positions in their chosen occupation or profession.9 Nonetheless, for some graduates, internship programmes are no panacea as opportunities to progress beyond them and into employment vary. Graduates are also commonly treated differently as a result of, for example, their Grade Point Average10 and/or 4 The unemployment rate of graduates has risen dramatically from 4.4 per cent in the first quarter of 2011 to 7.9 per cent in the first quarter of 2019. See Statistics South Africa, Quarterly Labour Force Survey (Statistical release P0211, Stats SA 2019), http://www .statssa .gov .za/ publications/P0211/ P02111stQuarter2019 .pdf, accessed 30 March 2021. 5 Faith Oluwajodu, Derick Blaauw, Lorraine Greyling, Ewert PJ Kleynhans, ‘Graduate Unemployment in South Africa: Perspectives from the Banking Sector’ (2015) 13 SA J Hum Res Manage art 656. 6 Koyana (n 3) 29. 7 These fields include information technology and telecommunications; quality and regulatory professionals; and business, management and economics. See ‘Department of Higher Education and Training, Skills Development Act 97/1998: National List of Occupations in High Demand, 2018’, Republic of South Africa, Government Gazette, vol 636, no 41728 (22 June 2018), http:// www .dhet .gov .za/ Information%20Systems %20Coordination/GAZETTE .pdf ?platform= hootsuite, accessed 30 March 2021. 8 See eg Andreanis v Department of Health (2006) 5 BALR 461, discussed later in this chapter. 9 South African Board for People Practices (SABPP), Internships: A Guide for Employers (SABPP 2014) 2–4, https://www .workinfo .com/ images/Attachments/ SABPP/ Internships -A -Guide -for -Employers -June2014 .pdf, accessed 30 March 2021. 10 Ruth Imose and Larissa Barber, ‘Using Undergraduate Grade Point Average as a Selection Tool: A Synthesis of the Literature’ (2015) 18 Psychologist-Manager J 1. Mahlatse Innocent Maake-Malatji - 9781800885042 Downloaded from Elgar Online at 09/27/2021 04:12:14AM via free access 132 Internships, employability and the search for decent work experience institutional preference.11 This chapter mainly focuses on black graduates, as it has been shown that they suffer from higher unemployment than any other race.12 The way in which internships are regulated affords them no assistance. Consequently, social justice is still not achieved in this regard. 8.2 REGULATING INTERNSHIPS AND GRADUATE CHALLENGES The terms ‘intern’ and ‘internship’ have been defined in various ways, often depending on the field in which they are used. An intern is usually understood to be ‘a person who is employed at an entry-level position in an organisation in a structured programme to gain practical experience in [a] particular occu- pation or profession’.13 A typical example can be seen in the guidelines pub- lished by Stellenbosch University, which describe an internship as ‘a planned, structured and managed programme that provides work experience for an agreed period of time’,14 which may last up to two consecutive years. An internship has also been described as ‘career specific work experience that one undertakes during/after one’s studies in order to gain the practical experience required to operate and make a positive contribution with respect to the career path one eventually pursues’.15 11 In a qualitative study by Elza Lourens and Magda Fourie-Malherbe, one of the participants stated: ‘if I can choose only 5 candidates to interview, I will prefer to choose the candidates from the more established institutions like UCT and Stellenbosch’. Elza Lourens and Magda Fourie-Malherbe, From Graduate to Employee: Examining the Factors that Determine the Professional Success of Graduates from Disadvantaged Backgrounds (Cape Higher Education Consortium 2017) 43, http:// www .chec .ac .za/ files/ 2017 -06 -30 %20Final %20CHEC %20research %20report %20with %20cover %2030 %20June %202017 .pdf, accessed 30 March 2021. 12 Nombuelo Precious Mncayi, ‘The Determinants of Employment Status of Young Graduates from a South African University’ (Master’s thesis, North West University 2016), https://pdfs .semanticscholar.org/ 87dc/ f8da9f 500df106d7 1cc9283836 1466c5dfe9 .pdf ? _ga = 2 .126369229 .1312254481 .1584645323 -433629486 .1584645323, accessed 30 March 2021. 13 SABPP (n 9) 3. The definition includes graduates and school leavers, but not work placement trainees. See also Stellenbosch University, Guidelines for Internships at Stellenbosch University (Stellenbosch University 2018), https://www .sun .ac .za/ english/ human -resources/ Documents/ HR %20WEB %20 - %20MHB %20WEB/ Documents -Dokumente/ Policies -Beleide/ Staff %20Development/ PD0328 - %20Guidelines %20for %20internships %20at %20Stellenbosch%20University .pdf, accessed 30 March 2021. 14 Stellenbosch University, ibid 2. 15 SA Works, ‘FAQ SA Works’ (SA Works, 2011), http:// www .saworks .co .za/ faq .html, accessed 30 March 2021. Mahlatse Innocent Maake-Malatji - 9781800885042 Downloaded from Elgar Online at 09/27/2021 04:12:14AM via free access The law and regulation of internships in South Africa 133 8.2.1 The South African Employment Law on Internships The transition of graduates from education to employment requires skill devel- opment within different professions. South Africa has enacted various pieces of legislation to regulate the workplace skills development of South African citizens. At the forefront is the Skills Development Act 97 of 1998, the main purpose of which is to develop the skills or human resources of the South African workforce: ‘to improve the quality of life of workers, their prospects of work and labour mobility’.16 The Employment Equity Act 55 of 1998 aims to eliminate unfair discrimination17 and to implement affirmative action measures in order to address employment discrimination.18 In addition, the Black Economic Empowerment Act 53 of 2003 encourages companies to increase the numbers of their black employees, managers, shareholders and service providers.19 This Act was intended to support the Black Economic Empowerment initiative, the aim of which is to empower the majority black people in South Africa, who in the past were suppressed by the apartheid