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Journal articles on the topic 'Labor courts – South Africa'
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1
Calitz, K. "Globalisation, the Development of Constitutionalism and the Individual Employee." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 10, no. 2 (July 4, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2007/v10i2a2805.
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Summary To establish which legal system will govern the relationship between parties involved in an international employment contract, the rules of private international law (or conflict of laws) must be applied. Each country has its own rules of private international law and each country’s courts will apply its own rules if the court is seized with a matter that involves foreign elements. There may be conflict between the potentially applicable legal systems of countries in terms of the level of protection afforded to employees who are parties to international employment contracts. South Africa has constitutionalised the right to fair labour practices and the question is whether this right is applicable to South African employees working in other countries, or to foreigners working in South Africa who originate from countries where this right is not protected. The answer to this question is to be found in the influence of the Constitution on the rules of private international law as applied by South African courts. It is evident from recent judgments of the Labour Court that the Court will readily assume jurisdiction and will furthermore readily hold that the proper law of the contract is South African law in order to protect the constitutional rights of employees involved in international employment contracts. Had the Labour Court held that the place of performance was still the decisive connecting factor, (as previously decided in most South African cases on thisaspect) the law of the other countries involved in the international employment relationship could have left employees in a worse position than under South African law. This possibility seems to be one of the important underlying reasons for the Labour Court’s willingness to assume jurisdiction and to hold that the proper law was in fact South African law. In the globalisation context the Labour Court has contributed to the advancement of constitutionalism by developing South Africa’s common law rules of private international law to afford constitutional protection to employees involved in international employment contracts.
2
Selala, Koboro J. "Constitutionalising The Right to Legal Representation at CCMA Arbitration Proceedings: Law Society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 4 (May 17, 2017): 396. http://dx.doi.org/10.17159/1727-3781/2013/v16i4a2425.
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Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.
3
Diedericks, Leana. "The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence." Potchefstroom Electronic Law Journal 20 (November 8, 2017): 1–32. http://dx.doi.org/10.17159/10.17159/1727-3781/2017/v20i0a1475.
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Protection in terms of labour law is primarily only available to persons with status as employees. In South Africa the courts have over the years developed different tests to establish who is an employee and therefore entitled to protection afforded by labour law. These tests have been incorporated into legislation. The Labour Relations Act 66 of 1995 provides for a definition and presumption of who is an employee. The Act further excludes certain categories of persons from its application and ambit. Although magistrates have not expressly been excluded from the application of the Act, it has been held that they are not employees, because such a categorisation would infringe upon the principle of judicial independence as guaranteed by the Constitution of the Repubblic of South Africa, 1996.
The purpose of this paper is to evaluate whether magistrates could be categorised as employees in terms of the traditional tests of employment and still be able to maintain judicial independence as required by the South African Constitution.
4
Van Eck, Stefan, and Tungamirai Kujinga. "The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective." Potchefstroom Electronic Law Journal 21 (November 2, 2018): 1–34. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4413.
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South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms.
Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.
5
Olivier, Marius, and Avinash Govindjee. "The Inter-Relationship between Administrative Law and Labour Law: Public Sector Employment Perspectives from South Africa." Southern African Public Law 30, no. 2 (December 1, 2017): 319–46. http://dx.doi.org/10.25159/2522-6800/3583.
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The legal position of public sector employees who challenge employment decisions taken by the state or organs of state in its/their capacity as employer in South Africa has long been problematic. Even though at least four judgments by the Constitutional Court of South Africa have considered whether employment-related decisions in the public sector domain do or could amount to administrative action and whether administrative law and/or labour law should be applicable for purposes of dispute resolution, legal uncertainty remains the order of the day due to a combination of factors. The authors assess whether (and to what extent) the rich South African administrative-law jurisprudence remains of importance in relation to the public employment relationship, bearing in mind the applicable legal considerations, including the inter-relatedness, interdependence and indivisibility of the range of applicable fundamental constitutional rights. Considering the debate in other jurisdictions on this issue, the authors develop a paradigm for situating different employment-related disputes as matters to be decided on labour and/or administrative-law principles in South Africa. This requires an appreciation, to the extent relevant, of the unique nature public sector employment relationships and a detailed investigation of the applicable legal sources and precise parameters of the cases already decided in the country. The position of employees deliberately excluded from the scope of labour legislation is analysed, for example, as is the legal position of high-ranking public sector employees. The outcome of the investigation is important for determining the legal principles to be applied in cases involving public sector employees in their employment relationship, and for purposes of determining the question of jurisdiction. Recent cases, for example where the courts have permitted the state, as employer, to review its own disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the basis that this amounts to administrative action which is reviewable, are also examined in the light of the uncertainty regarding the precise nature and scope of the review.
6
Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 4 (May 17, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2013/v16i4a2427.
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This edition of PER consists of eight articles, four notes and two book reviews covering a range of topics. The first article is by Oliver Fuo, a postgraduate student of the North-West University (Potchefstroom Campus). His contribution deals with the status of executive policies and the basis for their judicial enforcement in a constitutional and socio-economic context. He demonstrates that "executive" policies may be perceived to have the force of law, especially where their enforcement may be imperative for the realisation of socio-economic rights. Secondly, Ig Rautenbach of the University of Johannesburg considers empirical data on the effectiveness of the Constitutional Court during the period 1995 to 2012. He focuses on the following three questions: "How did the cases reach the court", "why did the court refuse to consider some of them", and "how often did the court invalidate laws and actions". In the third article, Magda Slabbert and Hendrik Pienaar, follows a multi-disciplinary approach to discuss the legal position of the locum tenens that is often used by medical practitioners in private practice. They recommend that a locum tenens be appointed as an independent contractor rather than an employee, and argues that the onus to ensure that he or she is registered and fit to practice rests on the principal. The fourth article by Carika Keuler deals with the "pay now, argue later" rule in terms of the Tax Administration Act 28 of 2011. She is of the opinion that the Act fails to address the imbalance between the duties of the South African Revenue Services and the right of the taxpayer to access the courts. JC Knobel, the author of the fifth article, gives an overview of the conservation status of eagles in South Africa. He discusses the existing legal framework and makes a number of recommendations to improve their legal status. Two authors, Laurence Juma and James Tsabora, both from Rhodes University, discuss the possibility of South Africa enacting a new law regulating private military and/or security companies, which they refer to as PMSC's. The seventh article by Johan Kruger and Clarence Tshoose gives a South African perspective on the impact of the Labour Relations Act 66 of 1995 on minority trade unions. In the eight place, Dave Holness offers an analysis of compulsory "live client" clinical legal education as part of the LLB course as a means of improving access to justice for the indigent.
7
Keith-Bandath, Rasheed. "The evasion of Section 187(1)(c) of the Labour Relations Act: National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC)." Obiter 41, no. 3 (January 1, 2021): 642–50. http://dx.doi.org/10.17159/obiter.v41i3.9587.
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Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.
8
Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 5 (May 17, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2013/v16i5a2450.
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The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
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Lichtenstein, Alex. "Challenging ‘umthetho we femu’ (the law of the firm): gender relations and shop-floor battles for union recognition in Natal's textile industry, 1973–85." Africa 87, no. 1 (January 27, 2017): 100–119. http://dx.doi.org/10.1017/s0001972016000711.
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AbstractAs part of a growing working-class movement that sought full legal status as employees in South Africa, stable urban residence and union recognition, female African factory workers became part of a dynamic new labour movement emanating from the shop floor. At the same time, this new role allowed them to challenge patriarchal structures of authority in the factory, the community and the home. This article examines the gender dimension of a bitter inter-union rivalry that beset Durban's Frame textile complex during the early 1980s. With African unions at last recognized by the apartheid state, Frame sought to bolster the strength of a compliant company union in order to thwart the organizing drive of a more confrontational independent union, an affiliate of the newly established Federation of South African Trade Unions (FOSATU). This union rivalry was fought out in the courts as well as inside the factory, in the streets of Durban's townships, and in an African workers’ hostel in nearby Clermont. The legal dispute generated affidavits by women workers attesting to the pressures they faced to join the company union and their reasons for preferring FOSATU. This evidence shows that African women successfully challenged the patriarchal authority of male managers, security personnel, indunas and male co-workers at Frame in order to join an independent union.
10
Ebrahim, Shamier. "The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 1 (April 21, 2017): 612. http://dx.doi.org/10.17159/1727-3781/2014/v17i1a2267.
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The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5] It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA.
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Selala, Kobolo J. "The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 2 (June 6, 2017): 206. http://dx.doi.org/10.17159/1727-3781/2011/v14i2a2569.
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The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee’s contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court’s decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court’s reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court’s judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee’s constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect - hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.
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Mould, Kenneth. "The Suitability of the Remedy of Specific Performance to Breach of A "Player's Contract" with Specific Reference to the Mapoe and Santos Cases." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 1 (June 6, 2017): 188. http://dx.doi.org/10.17159/1727-3781/2011/v14i1a2554.
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During the 1990s, rugby union formation in the Republic of South Africa developed rapidly from a system of strict amateurism to one of professionalism. Professional participants in the sport received salaries for participation, and rugby became a business like any other. As in all forms of business, rugby had to be regulated more efficiently than had previously been the case. Tighter regulations were instituted by governing bodies, and ultimately labour legislation became applicable to professional rugby. A professional sportsman or woman participating in a team sport is generally considered an employee. This means that the same principles that govern employees in general should also apply to professional sportsmen and women. The exact nature of the "player's contract", a term generally used to describe the contract of employment between a professional sportsman or sportswoman and his or her employer, deserves closer attention. It has been argued with much merit that the "player's contract", while in essence a contract of employment, possesses certain sui generis characteristics. The first aim of this article is to demonstrate how this statement is in fact a substantial one. If it is concluded that the "player's contract" is in fact a sui generis contract of employment, the most suitable remedy in case of breach of contract must be determined. The second aim of this article is to indicate why the remedy of specific performance, which is generally not granted in cases where the defaulting party has to provide services of a personal nature, is the most suitable remedy in case of breach of "player's contracts". To substantiate this statement, recent applicable case law is investigated and discussed, particularly the recent case of Vrystaat Cheetahs (Edms) Beperk v Mapoe. Suggestions are finally offered as to how breach of "player's contracts" should be approached by South African courts in future.
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Pickles, Camilla Marion Sperling. "Sounding the Alarm: Government of the Republic of Namibia v LM and Women's Rights during Childbirth in South Africa." Potchefstroom Electronic Law Journal 21 (August 9, 2018): 1–34. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4303.
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Government of the Republic of Namibia v LM [2014] NASC 19 (hereafter the LM case) concerns the involuntary sterilisation of women during childbirth. The Supreme Court of Namibia found that obtaining consent during the height of labour is inappropriate because labouring women lack the capacity to consent because of the intensity of their labour pains. This article recognises that the LM case may make its way into current litigation strategies against involuntary sterilisations in South Africa and for this reason I evaluate the soundness of the court's reasoning in the LM case. I argue that the court relied on the harmful gender stereotype that labouring women lack the capacity to make decisions, I expose this stereotype as baseless and demonstrate the harmful consequences of its perpetuation. Finally, I demonstrate why the reasoning in the LM case is particularly problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth.
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Hilton, Luke. "Rethinking Parliamentary Status: Are Parliamentarians Bound by the Protected Disclosures Act 2000? A Comparison Between South Africa and New Zealand." Victoria University of Wellington Law Review 49, no. 3 (November 1, 2018): 341. http://dx.doi.org/10.26686/vuwlr.v49i3.5328.
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This article compares the Protected Disclosures Act 2000 (PDA) in South Africa and New Zealand. The comparison is framed by the question whether the PDA binds members of Parliament (MPs) or not. Regarding South Africa, the article analyses the provisions of the PDA and its curial interpretation in the Charlton litigation. Technically, MPs are bound by the PDA. This article nonetheless defends the Labour Appeal Court's merits judgment, which held that MPs are not bound. Regarding New Zealand, the article analyses the provisions of the PDA and suggests the probable outcome in court if similar litigation were ever to occur in New Zealand.
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Van Eck, Stefan. "Temporary Employment Services (Labour Brokers) in South Africa and Namibia." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 13, no. 2 (June 15, 2017): 106. http://dx.doi.org/10.17159/1727-3781/2010/v13i2a2642.
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South Africa currently allows labour broking although this area of commerce is problematic. The trade union movement, government and organised business are presently debating the future regulation of this industry. Namibia has experimented with, and failed, to place a legislative ban on labour broking. The Supreme Court of Appeal of Namibia considered International Labour Organisation conventions and provisions of their Constitution before concluding that labour broking should be regulated but not prohibited. In this article it is argued that South African policy makers can gain valuable insights from the Namibian experience. It is submitted that it would be appropriate for Parliament to take cognisance of international and foreign principles and to accept amendments that would provide for stricter regulation for labour broking, rather than placing an outright ban on this economic activity.
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Buhlungu, Sakhela. "South Africa." Work and Occupations 36, no. 2 (March 12, 2009): 145–61. http://dx.doi.org/10.1177/0730888409333753.
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This article explores the ways in which a form of intellectual engagement has gone beyond merely studying society and sought to influence processes of change by engaging with actors outside disciplinary scholarship and the academy. In South Africa, the broad subdiscipline of labor studies provides probably the best illustration of this engagement, which Burawoy has termed public sociology. The article traces the emergence and growth of public sociology, initially from the position of relative privilege in the ivory tower and later to more direct forms of engagement with the new publics that emerged in the antiapartheid struggle. The discussion explains why the labor movement became the focal point of public sociology in South Africa. Finally, the article argues that the advent of democracy led to a growing assertiveness among the antiapartheid movements, including labor. Not only did this alter the terms on which public sociology was undertaken, it also resulted in a decline of public sociology inherited from the antiapartheid struggle.
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Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal 18, no. 1 (February 21, 2015): 0. http://dx.doi.org/10.17159/1727-3781/2015/v18i1a13.
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The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere. The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).
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Van Eck, Stefan, and Tungamirai Kujinga. "The Role of the Labour Court in Collective Bargaining: Altering the Protected Status of Strikes on Grounds of Violence in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC)." Potchefstroom Electronic Law Journal 20 (December 18, 2017): 1–20. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1774.
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This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.
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Geldenhuys, Judith. "THE REINSTATEMENT AND COMPENSATION CONUNDRUM IN SOUTH AFRICAN LABOUR LAW." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (May 30, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1172.
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The SBV Services (Pty) Ltd case brought a novel concept into the labour dispute resolution arena: arbitrators must inform employees who succeed in proving that they were dismissed for an unfair reason of the implications of a reinstatement or compensation order in terms of the Labour Relations Act 66 of 1995 before making an award. This case discussion highlights how the court, under the pennant of the interests of justice, made injudicious errors in the interpretation and application of accepted legal principles, and the potential negative effects that enforcement of this principle could have.
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Newaj, Kamalesh. "Defining Fairness in Dismissals of Unauthorised Foreign Nationals." Potchefstroom Electronic Law Journal 23 (August 24, 2020): 1–25. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a7586.
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It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.
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Botes, Anri. "The History of Labour Hire in Namibia: A Lesson for South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 1 (April 26, 2017): 505. http://dx.doi.org/10.17159/1727-3781/2013/v16i1a2320.
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Labour hire, the practice of hiring out employees to clients by a labour broker, has been a part of Namibia’s history since the early 1900s in the form of the contract labour system. This form of employment was characterized by inhumanity and unfair labour practices. These employees were subjected to harsh working conditions, inhumane living conditions and influx control. The contract labour system continued until 1977, when it was abolished by the General Law Amendment Proclamation of 1977. It was during the 1990s that the hiring out of employees returned in the form of labour hire. It continued in this form without being regulated until it was banned in the Namibian Labour Act of 2007. In 2009 Africa Personnel Services, Namibia’s largest labour broker, brought a case before the court against the Namibian Government in an attempt to have the ban nullified on grounds of unconstitutionality. It argued that the ban infringed on its right to carry on any trade or business of its choice as contained in section 21(1)(j) of the Constitution of the Republic of Namibia. APS triumphed. It was not until April 2012 that new legislation was promulgated in order to officially lift the ban and to regulate labour hire in its current form. This new legislation came into force in August 2012. Various very important provisions are contained in the Labour Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment Services Act 8 of 2011, containing provisions for the regulation of labour brokers as juristic persons per se, was also introduced and came into force in September 2012. The aim of this note is to serve as a lesson to the South African government as to what could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the employees of a labour broker should be protected. In this regard the history of labour hire and the current strides in Namibia cannot be ignored.
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Anand, Rahul, Siddharth Kothari, and Naresh Kumar. "South Africa: Labor Market Dynamics and Inequality." IMF Working Papers 16, no. 137 (2016): 1. http://dx.doi.org/10.5089/9781498358934.001.
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Corder, Hugh. "Judicial authority in a changing South Africa." Legal Studies 24, no. 1-2 (March 2004): 253–74. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00250.x.
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‘Our legal system cannot be outclassed … There are attacks, incriminations and accusations that our judgments in law are not objective and independent … To say our courts are just and impartial is not saying much. The truth is that there are no courts anywhere in the world whose judges' … integrity is higher than ours.’H J Coetsee, Minister of Justice, 1986‘The South African Constitution is different [from those which formalise an historical consensus of values]: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution.’Justice Mahomed, Constitutional Court, 1995Debates about the proper role and limits of judicial authority in the state are unusually heated, enduring and inconclusive. Talk about judicial review, the democratic deficit, the counter-majoritarian difficulty and the separation of powers matters, because what is at stake is the formal identification of the ultimate forum for political decision-making in a constitutional democracy.
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Ismail, Riaz, and Clarence Itumeleng Tshoose. "Analysing the Onus Issue in Dismissals Emanating from the Enforcement of Unilateral Changes to Conditions of Employment." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 7 (June 9, 2017): 146. http://dx.doi.org/10.17159/1727-3781/2011/v14i7a2620.
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The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.
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Cooper-Knock, S. J., and Anna Macdonald. "A summons to the magistrates’ courts in South Africa and Uganda." African Affairs 119, no. 477 (October 1, 2020): 552–77. http://dx.doi.org/10.1093/afraf/adaa026.
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Abstract The expansive literature on law and justice across Africa emphasizes why people do not use lower state courts. Consequently, a striking lack of attention is paid to how and why people do engage with lower state courts. Drawing on a systematic literature review and a multi-sited qualitative study, we make three contributions on this topic. First, we explore how this academic gap emerged. Second, we critique the procedural justice model that currently underlies much ‘access to justice’ programming, which seeks to improve citizens’ engagements with the courts. In place of what we describe as its arithmetic assumptions about institutional engagement, value, and legitimacy, we propose a trifactor framework. Citizen engagement, we argue, occurs as people reconcile how they think the courts should act, how they expect them to act, and how they need them to act in any given instance. Third, drawing on our empirical studies, we highlight that this framework is flexible enough to capture people’s actually existing decision-making in a wide variety of settings and to map how those trade-offs shift throughout the process of their case, providing important insights into ideas of justice and statehood.
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Pande, Nishant. "Right Against Exploitation under Article 24 of the Indian Constitution." Christ University Law Journal 9, no. 2 (July 1, 2020): 37–57. http://dx.doi.org/10.12728/culj.17.3.
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Article 24 of the Constitution prohibits the employment of children in hazardous environments. The provision is worded in a manner that allows horizontal application of the right guaranteed thereby. However, the Hon’ble Supreme Court of India’s method of applying this horizontal right is obscure. On one hand, the Court in People’s Union for Democratic Rights v. Union of India indulged in a direct horizontal application of the right conferred under the Article, while on the other hand, the Court in the case of M. C. Mehta v. State of Tamil Nadu, undertook a combined indirect horizontal and vertical application of the Article. This paper attempts to identify the exact manner of applicability of the right under Article 24, by tracing its development, with specific reference to the Supreme Court’s interpretation of the same. Further, this paper explores the possibility of reading the right against exploitation in a more inclusive manner, as has been done for right to life under Article 21. The author has been inspired by the International community’s perception of child labour, specifically, the Constitution of Ireland and the Bill of Rights of South Africa, in putting forward arguments to augment the expansion of the scope of Article 24.
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Atrey, Shreya. "Beyond discrimination: Mahlangu and the use of intersectionality as a general theory of constitutional interpretation." International Journal of Discrimination and the Law 21, no. 2 (May 12, 2021): 168–78. http://dx.doi.org/10.1177/13582291211015637.
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This case note explores the landmark decision of the South African Constitutional Court in Mahlangu and Another v. Minister of Labour and Others, which recognised intersectional discrimination under section 9(3) of the Constitution. It shows that the Court went beyond that in fact and recognised intersectionality not just as part of discrimination law, but also as part of general constitutional law, using it as a theory of constitutional interpretation in adjudication.
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Chadha, Bankim. "Disequilibrium in the Labor Market in South Africa." IMF Working Papers 94, no. 108 (1994): 1. http://dx.doi.org/10.5089/9781451853032.001.
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Chadha, Bankim. "Disequilibrium in the Labor Market in South Africa." Staff Papers - International Monetary Fund 42, no. 3 (September 1995): 642. http://dx.doi.org/10.2307/3867535.
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Barchiesi, Franco. "South Africa in Transition: Scenarios Facing Organized Labor." Critical Sociology 22, no. 3 (October 1996): 79–112. http://dx.doi.org/10.1177/089692059602200305.
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Mwambene, Lea. "The essence vindicated? Courts and customary marriages in South Africa." African Human Rights Law Journal 17, no. 1 (2017): 35–54. http://dx.doi.org/10.17159/1996-2096/2017/v17n1a2.
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Rautenbach, Christa. "Therapeutic Jurisprudence in the Customary Courts of South Africa: Traditional Authority Courts as Therapeutic Agents." South African Journal on Human Rights 21, no. 2 (January 2005): 323–35. http://dx.doi.org/10.1080/19962126.2005.11865138.
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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.
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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.
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Dias Paes, Mariana Armond. "To be dependent in the Brazilian Empire: land and labour in court cases." Población & Sociedad 27, no. 2 (December 1, 2020): 8–29. http://dx.doi.org/10.19137/pys-2020-270202.
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This article examines the arguments used in an 1835 court case filed before the Court of Appeals of Rio de Janeiro. This analysis highlights t hat: a) the considerable number of African slaves and the existence of a shared culture in the South Atlantic had a strong impact on freedmen’s and freedwomen’s experiences of freedom; b) masters resisted freedpersons demands for rights and tried to sust ai n dependency relations; and c) in a context of precariousness of freedom, it was paramount to be recognized by the community as a free person and access to land played a central role in this recognition
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Bernstein, Ann. "South Africa’s Key Challenges." ANNALS of the American Academy of Political and Social Science 652, no. 1 (January 30, 2014): 20–47. http://dx.doi.org/10.1177/0002716213508913.
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The article looks at the “tough choices” (per the National Development Plan) South Africa has to make to be a successful country. It provides policy recommendations and prescriptions for many of the critical issues facing South Africa. The most urgent policy challenges revolve around high levels of unemployment, the regulation of the labor market and the role of unions, the shortage of skills, and the education system. The solutions proposed include the relaxation of labor laws, which hinder entry into the labor market, especially for young people; the introduction of special economic zones; the adoption of an open migration regime for skilled migrants; and the establishment of low-fee private schools and private tertiary education providers. The article calls for bold and visionary leadership in South Africa to ensure that the “tough choices” needing to be made are implemented.
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Mujuz, Jamil D. "Unpacking the Law and Practice Relating to Parole in South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 5 (June 8, 2017): 204. http://dx.doi.org/10.17159/1727-3781/2011/v14i5a2602.
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The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.
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Vettori, Stella. "The Role of Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 4 (May 29, 2017): 101. http://dx.doi.org/10.17159/1727-3781/2012/v15i4a2511.
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South African labour law is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual's right to dignity. In other words the attainment of fairness in the employment relationship must give cognisance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalised to the extent that it is crippled and unable to continue operating. It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labour law operates in a free enterprise system must be and is given cognisance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the labour rights contained in the Constitution but also to other rights protected in terms of the Constitution, most importantly, the rights to dignity and equality. The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. However, an analysis of relevant case law demonstrates that this can never be at the expense of a person's dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been discrimination or an impairment of the employee's dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages.
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L. Muriaas, Ragnhild. "Dilemmas Connected to Recognising Customary Law and Courts in South Africa." Human Rights in Development Online 9, no. 1 (2003): 205–33. http://dx.doi.org/10.1163/22116087-90000008.
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Kenny, Bridget. "Walmart in South Africa: Precarious Labor and Retail Expansion." International Labor and Working-Class History 86 (2014): 173–77. http://dx.doi.org/10.1017/s0147547914000167.
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In 2011 Walmart's bid to buy a controlling stake in South Africa's Massmart Holdings, Inc. went before the country's Competition Commission and Competition Tribunal, both of which would determine whether to grant the merger outright or to place conditions on it. Massmart Holdings comprises a number of branded subsidiaries in the South African market, including Walmart-style general merchandise dealers, electronics retailers, do-it-yourself building suppliers, and food wholesalers—Game, Dion, Builder's Warehouse, and Makro, respectively—as well as the more recently acquired food retailer, Cambridge Food. South African unions, most prominently the South African Commercial, Catering and Allied Workers Union (Saccawu), with support from the Global Union Federation UNI Global and, in the United States, the United Food and Commercial Workers, fought the merger.
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Jochelson, Karen, Monyaola Mothibeli, and Jean-Patrick Leger. "Human Immunodeficiency Virus and Migrant Labor in South Africa." International Journal of Health Services 21, no. 1 (January 1991): 157–73. http://dx.doi.org/10.2190/11ue-l88j-46hn-hr0k.
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Mitra, Sophie. "Disability Screening and Labor Supply: Evidence from South Africa." American Economic Review 99, no. 2 (April 1, 2009): 512–16. http://dx.doi.org/10.1257/aer.99.2.512.
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Leibbrandt, M., H. Bhorat, and I. Woolard. "HOUSEHOLD INEQUALITY AND THE LABOR MARKET IN SOUTH AFRICA." Contemporary Economic Policy 19, no. 1 (January 2001): 73–86. http://dx.doi.org/10.1111/j.1465-7287.2001.tb00051.x.
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Pillay, Devan. "The Labor Movement and Ecosocialist Prospects in South Africa." Socialism and Democracy 30, no. 2 (May 3, 2016): 171–86. http://dx.doi.org/10.1080/08854300.2016.1195165.
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Levinsohn, James, Zoë M. McLaren, Olive Shisana, and Khangelani Zuma. "HIV Status and Labor Market Participation in South Africa." Review of Economics and Statistics 95, no. 1 (March 2013): 98–108. http://dx.doi.org/10.1162/rest_a_00237.
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Rautenbach, IM. "Regspraak: Die konstitusionele hof verwyder die reg van werknemers om nie onbillik ontslaan te word nie uit die beskermingsveld van die handves van regte – grondwetlike gesigspunte." Tydskrif vir die Suid-Afrikaanse Reg 2021, no. 1 (2021): 145–59. http://dx.doi.org/10.47348/tsar/2021/i1a9.
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Section 39(2) of the Constitution of the Republic of South Africa, 1996, recognises the existence of rights not protected in the bill of rights. The South African bill of rights protects human conduct and interests extensively. Before the AMCU judgment was delivered, no clear example of a right not protected by the bill of rights had been identified in case law and legal literature. In the AMCU case the constitutional court deviated from previous judgments by holding that the interests of employees not to be dismissed unfairly is not covered by the right to fair labour practices in section 23(1) of the constitution. The court based its finding on textual and contextual interpretive considerations. Its interpretation of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section 23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended constitutional phrases like “fair” labour practices is determined. And an extra-textual reference to the protection of the right in ordinary law is not relevant when the meaning of a constitutional provision is determined. Aspects of human dignity and physical and psychological integrity cannot be removed from the protective ambit of the bill of rights because they are protected by ordinary rules of the law of delict and criminal law. Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair labour practices, like the right to access to housing, food, health and social services, children’s rights and criminal and civil procedural rights, protects other constitutional rights in a particular field, in this case in the field of labour relations. Apart from the fact that it can hardly be contested that every employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human dignity, physical and psychological integrity, economic activity, association and audi alteram partem, may be limited factually by dismissals and dismissal procedures. The scheme and ethos of the South African bill of rights is that these special rights that overlap with the general rights are guaranteed separately. Within this context one of the ironies of the artificial exclusion of a right from the protective ambit of the special right is that its violation may, like in systems without these special rights, be challenged on the basis of the unjustifiable limitation of the general rights. A rule of thumb that the protective ambit of constitutional rights should be interpreted restrictively because the application of the weak rational relationship test as part of the rule of law serves the separation of power principle better than the application of the stricter reasonable test for the limitation of constitutional rights (in the separate concurring judgment of Theron J) is questionable. Whereas legality as part of the rule of law is always complied with when the weak rationality relationship exists, reasonableness in terms of section 36 does not always amount to the application of a stricter test. The existence of a very compelling purpose (to combat a pandemic that threatens life and limb) or a factually slight limitation of a right (to stop at a stop sign) could be the basis of a conclusion that the limitation is justifiable when the weak rational relationship test is complied with. The court’s consideration of proportionality under the umbrella of the application of the weak rational relationship test causes more uncertainty in the present somewhat unruly field of the application of rationality tests.
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Ntlama, Nomthandazo, and Dazo Ntlama. "The Constitutional Divide of Postapartheid South Africa in the Jurisdiction of the Traditional Justice System." Southern African Public Law 29, no. 2 (December 18, 2017): 282–93. http://dx.doi.org/10.25159/2522-6800/3641.
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The exclusive jurisdiction of the traditional justice system – which in effect is based on racial classification – has been the subject of debate in South Africa since the attainment of democracy in 1994. The debate is drawn from the Constitution, which recognises the general system of customary law, and limits its application to the people who observe it. The debate is further fuelled by the non-explicit recognition of the customary court system within the judicial structure of the Republic. These courts are inferred from the concept of ‘any other courts’ in the Constitution. The inference of customary courts from ‘any other courts’, compromises the legitimate status of these courts in the resolution of disputes that arise from the system of customary law – in line with the ideals of the new constitutional dispensation. This considered, this article critically reviews the constitutional status of the customary court system in South Africa. The objective is to examine the effect of its exclusive jurisdiction in the application of the principles of traditional justice. It is also limited to the review of South Africa’s constitutional perspective on the protection of customary law relating to the advancement of the traditional justice system. It is argued, therefore, that the exclusive jurisdiction of the traditional justice system is a direct racial classification under the guise of the foundational values of the new democratic dispensation. Equally, the status given to customary courts – which is inferred from the concepts of ‘any other’ – constitutes a manifestation of the historic divide that compromises the legitimacy of these courts in the application of traditional justice. The extent, to which the exclusive jurisdiction can move towards a system that inclusively reflects the values of the new democratic dispensation, is also reviewed in general.
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Skelton, Ann. "Child Justice in South Africa: Application of International Instruments in the Constitutional Court." International Journal of Children’s Rights 26, no. 3 (August 6, 2018): 391–422. http://dx.doi.org/10.1163/15718182-02603003.
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International law provides rights, rules and principles that guide the manner in which children in conflict with the law should be treated. When children’s rights are violated, this international law framework can be used by lawyers and courts to identify the nature of the violation and determine the remedies that must be taken to redress the harm and alter law or practice to ensure such breaches are avoided in the future. This article describes the international framework and its effective application in the South African courts, through a discussion of four Constitutional Court cases dealing with children in conflict with the law. The article discusses the arguments that were advanced in the cases and illustrates the litigation strategies that were employed. The case discussions explore the extent to which the international law was applied, directly or indirectly, by the courts, and assess the jurisprudential and practical impact of the international instruments.
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Govender, Sandra. "Sexual Harassment: The South African Perspective." International Journal of Discrimination and the Law 7, no. 1-4 (September 2005): 229–51. http://dx.doi.org/10.1177/135822910500700409.
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Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication. Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one. The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.
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George Frynas, Jędrzej. "Social and environmental litigation against transnational firms in Africa." Journal of Modern African Studies 42, no. 3 (August 3, 2004): 363–88. http://dx.doi.org/10.1017/s0022278x04000230.
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As elsewhere in the world, Africa has experienced a rise in litigation against transnational corporations for adverse environmental and social impact. Cape plc and RTZ have been sued in British courts for environmental damage and for breach of employment rights in Africa. Companies which sold products to South Africa's former apartheid regime, such as Fujitsu and IBM, are now being sued in US courts. Shell and Chevron are being sued in US courts for human rights abuses in Nigeria. At the same time, foreign firms have been successfully sued in African courts for social and environmental damage. This article outlines the main relevant court cases and attempts to assess the significance of this litigation. The discussion of litigation in this article is divided into three parts: court cases filed in English, American and African (mainly Nigerian) courts. This is followed by an explanation of the triggers of legal change, a discussion of the impact of litigation and the conclusion.
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Phooko, Moses Retselisistoe. "Revisiting the Monism and Dualism Dichotomy: What does the South African Constitution of 1996 and the Practice by the Courts tell us about the Reception of SADC Community Law (Treaty Law) in South Africa?" African Journal of International and Comparative Law 29, no. 1 (February 2021): 168–82. http://dx.doi.org/10.3366/ajicl.2021.0356.
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The jurisprudence of the (suspended) SADC Tribunal shows that the Tribunal was prepared to utilise the principles of democracy, human rights and the rule of law contained in the Treaty of the Southern African Development Community (SADC Treaty) to ensure that SADC member states fulfil their treaty obligations. The decisions rendered by the SADC Tribunal and the participation of the South African former President in a process that halted the functioning of the Tribunal have brought interesting legal developments in the South African legal system in so far as the reception and application of SADC community law in South African municipal law is concerned. The argument presented in this article is that the recent seemingly monist approach by the courts represents a major shift from a prescribed procedure provided for in the Constitution of South Africa, 1996 (the Constitution). The practice by the courts further ignores the dualist nature of South Africa's legal system. The main question presented in this discourse is whether a departure by the courts from a constitutionally mandated procedure of domesticating SADC community law into municipal law signifies a new and settled norm which entails that South Africa now follows a hybrid system (i.e. monism and dualism) of treaty incorporation? In light of this possible legal uncertainty, I propose that South Africa adopts a harmonisation theory to address the legal gap created by the courts.