Littérature scientifique sur le sujet « Child labor – Law and legislation – Africa, Southern »

Section 211(3) of the Constitution of the Republic of South Africa, 1996 provides that no recognition of customary norms may be upheld if such norms are in conflict with either the constitution or any other law that deals specifically with customary law: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” The current Recognition of Customary Marriages Act 120 of 1998 deals explicitly with the recognition of customary marriages which are concluded in accordance with customary law (s 1). Customary law is defined as the “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. It follows from a further reading of section 1 that a customary marriage is reserved for those indigenous African peoples who observe such customs and usages. It is provided in section 10(4) that “[d]espite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage”. This must be read with the definitions contained in section 1: “‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples; ‘customary marriage’ means a marriage concluded in accordance with customary law”. Without the requisite legal competency, no legal subject can enter into any relationship to which the law may attach any consequences. Nobody can enter into a customary marriage if any of the presumed future spouses is already in a civil marriage according to the Marriage Act 25 of 1961, not even if the two parties are married to each other. According to the custom of various indigenous nations, if a man enters into a valid customary marriage with a woman who had never been married before but who is the mother of children born out of wedlock (spurii), the metaphor applies that he “who takes the cow also acquires the calf”. He will as part and parcel of the lobola ceremony be seen as the adopting stepfather of his wife’s children, with all the accompanying consequences. He will automatically be responsible for the future maintenance of those children as his adoptive children and they will acquire all rights and privileges that are bestowed on a child, including the right to inheritance and the right to his family name. As a consequence of this new relationship, all legal ties with the biological father of the adopted child are severed and the biological father will no longer be responsible for the maintenance of his offspring. In January 2019 an erstwhile law professor from UNISA who still retained his German citizenship, was gravely ill and cared for on life-support at a hospital in the Pretoria district. While in hospital, he tied the marriage knot with Miss Vilakazi, a Zulu woman with whom he had been in a relationship for the past five years. Miss Vilakazi was a spinster, but she had a Zulu daughter who was born out of wedlock more than eight years previously out of a relationship with an erstwhile Zulu lover. This child had been in the care of her maternal grandmother in Natal and, according to Zulu customary norms, was considered part of the house of her maternal grandfather, Vilakazi. She consequently carried the name Vilakazi as her registered surname on her official birth certificate. The marriage, which was conducted on 29 January 2019 in the hospital in Pretoria, was concluded with adherence to all the requirements of Act 25 of 1961. The civil marriage was duly registered as such. The late professor passed away in the hospital barely three weeks later on 19 February 2019. Less than 24 hours before the demise of the professor a purported customary marriage was concluded, apparently on behalf of the professor with the recently married Mrs Schulze by proxy by a friend of his in the Newcastle district in Natal after having paid R60 000 as ilobolo. The ceremony was concluded with the ceremonial slaughtering of the prescribed goat. However, during this ceremony the groom was not present but on life support in a Pretoria hospital and not necessarily compos mentis – the court was told that he was represented by a friend. Zulu customary law, however, does not recognise a marriage concluded by proxy with a substitude bridegroom as was known in Roman-Dutch law as “a wedding with the glove”. Neither the Marriage Act nor the Recognition of Customary Marriages Act, however, recognises a second marriage after the conclusion of a civil marriage by any of the purported newly weds – even if both “spouses” had been present in person. The mother of the late Professor Schulze, after his demise in South Africa, amended her last will in Germany and appointed her lifelong partner as sole beneficiary of her significant estate. She passed away in Germany in October 2019. In November 2019 the recently married Mrs Schulze, on behalf of her minor daughter, successfully approached the high court in Pietermaritzburg, where Zaca AJ issued an order compelling the South African department of home affairs to issue the daughter with a new birth certificate that reflects the late Professor Schulze as her father. Notwithstanding the unease of the officials at home affairs with this court order, the minister of home affairs, Mr Motsoaledi, personally intervened in August 2020 and the new birth certificate was issued as requested. Relying on this newly issued birth certificate, the applicant claims an amount of not less than R8 million in Germany from the estate of the late mother of Professor Schulze. For this purpose, the applicant relies on a principle in German law, the Pflichtteilsanspruch, according to which any descendant of the deceased has a right to a prescribed portion, a so-called legitimate portion of the estate, if not mentioned or sufficiently bestowed in the last will. This raises a number of seriously flawed legal arguments that are analysed in this article. It is submitted that the perceived lobola marriage ceremony conducted on behalf of the late professor on 18 February 2019 in Newcastle, less than 24 hours before his demise, is void because of the explicit constitutional provision and the relevant section 10(4) of the Recognition of Customary Marriages Act 120 of 1998, which excludes any competency to enter into a customary marriage if any of the parties involved is already married. At the date of the perceived lobola ceremony, Mrs Schulze had already been civilly married to Professor Schulze for more than three weeks and thus both spouses lacked the necessary competency to enter into a valid customary marriage. Whether a valid customary marriage could have been concluded at all with a man who did not live according to the customs and usages of the Zulu, is also highly questionable. Because the perceived lobola marriage is a nullity, no legal consequences can flow from this nullity and the so-called customary adoption of the daughter (“the calf with the cow”) is a nullity too. At no stage was any of the requirements for a valid adoption as governed by the Children’s Act 38 of 2005 adhered to. The minister of home affairs should have immediately given notice of appeal after the unconvincing judgment of Zaca AJ was handed down in January 2020. As the responsible minister, he should guard the upholding of the constitution and the applicable legal provisions unambiguously contained in the relevant section 10(4) of Act 120 of 1998. It is a pity that the so-called adherence to the principles of the “rule of law” is not even paid lip service in this case. Bennett, as a renowned expert on customary law, correctly pointed out that the legal orders are not unconnected. It may never be assumed that the people concerned are unaware of how to manipulate the resources offered them by legal pluralism (A Sourcebook of African Customary Law for Southern Africa (1991) 50).

Africa reportedly has the highest incidence of child labour in the world. To respond to this problem, some scholars recommend an outright ban on child labour through legislation. In this regard, most African countries, including South Africa (SA), have enacted legislation directed at banning child labour. However, legislation directed at banning child labour may impact negatively on certain fundamental rights of children. This is because child labour is sometimes a source of income for many children who may themselves have ‘dependants’. For instance, for children in desperate need, adherence to laws which have the effect of depriving them of basic necessities including food, housing and water is unrealistic, inadequate and totally ineffective. A notable example is with regard to orphaned children. Taking such children out of employment is counter-productive as they are left with no means of survival. On the other hand, though child labour contributes to the survival of many children and their families in Africa, it impacts negatively on fundamental rights of children. Some of these rights include the right to education, health, leisure, among others. Therefore, regardless of the circumstances that compel children to engage in child labour, it remains a problem that needs to be addressed through appropriate approaches. This study stresses that the approaches adopted need to be cognizant of the diverse circumstances under which children engage in child labour.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2011.
http://www.chr.up.ac.za/
nf2012
Centre for Human Rights
LLM

The purpose of this research is to explore the need for, and the legal implications of, harmonising labour laws in the Southern African Development Community (SADC). Chapter One highlights a number of factors that call for the harmonisation of labour laws in the SADC region and discusses some of the reasons why labour laws are not well developed in the region. The influence of globalisation on labour standards in southern Africa and the influence of regionalism on the harmonisation of labour laws are discussed at length. The inference that could be drawn from this discussion is that for a regionalisation process in southern Africa to be successful, there is an urgent need to harmonise the region’s labour law system. This thesis confirms that Southern Africa has many lessons to learn from the regional harmonisation of labour law in the European Economic Community and the current European Union. The implementation of international labour standards in southern Africa is investigated. The main areas examined include (1) freedom of association, (2) collective bargaining, (3) forced labour and (4) discrimination. The findings of this investigation show that there is no uniformity in the implementation of International Labour Organisation (ILO) standards in the SADC region and, therefore, it is recommended labour law should be harmonised in terms of ILO standards. In respect of the benefits to be derived from the harmonisation process, an empirical investigation was conducted in the SADC region and the following is recommended: the harmonisation of labour law in the SADC region will help with the implementation of ILO standards, protection of workers against the economic power of employers in the workplace and maintaining similar benefits for migrants in the region.
Mercantile law
LL.D.

A research report submitted to the Faculty of Management, University of the Witwatersrand, in partial fulfilment of the requirements for the degree of Master of Management (in the field of Public Policy) , April 2016
Child labour is a social problem that affects several countries worldwide, and South Africa is not an exception. It is the result of adverse economic conditions in the country, where children feel they have to resort to finding employment in order to support their families. There is a general consensus that child labour in South Africa needs to be dealt with, and this is seen via the ratification of the two most important ILO conventions that speak to child labour. The ratification of these conventions led to the development of a child labour policy for South Africa; the Child Labour Programme of Action. However, despite the existence of this policy and its implementation, child labour continues. This report looked at how the child labour policy was implemented, and to verify if the continued occurrence of child labour was due to a disconnection between the policy as it is presented on paper, and those who are supposed to implement the policy on the ground. The report used qualitative methods, specifically documentary analysis and interviews. The documents that were analysed included the Child Labour Programme of Action, as well as its follow up documents. Meanwhile, government officials as well as members of civil society were the interview subjects. The main finding of the research is that the implementers of the policy do not have a full understanding of the policy and what it entails. And because of this they are unable to properly implement the policy to produce an effective solution against child labour. The report concludes with recommendations intended to help the government to get more out of the Child Labour Programme of Action.
MT2018

This doctoral thesis deals with the regulation of non-standard employment in Southern Africa: the case of South Africa with reference to several other SADC countries. The growth and presence of non-standard employment since the 1970s has revealed an important concern in a number of countries, both at the global and national levels. The overall significance of non-standard employment has increased in recent decades in both developed and developing states, as its use has grown exponentially across economic sectors and employment. Non-standard employment is the opposite of the standard employment relationship, which is work that is full time and indefinite. Non-standard employment includes an unequal employment relationship between an employee and an employer. Some workers choose to work in non-standard employment, and the choice has positive results. Nonetheless, for the majority of workers, non-standard employment is associated with job insecurity, exploitation, and the absence of trade unions and collective bargaining. Non-standard employment can also create challenges for firms, the labour market and the economy, including society at large. Backing decent work for all entails a comprehensive understanding of non-standard employment and its ramifications. This study explores the regulation and protection of non-standard employment in Southern Africa with focus on South Africa. The study draws on international and regional labour standards, the South African Constitution of 1996, and the national experience to make policy recommendations that will ensure workers are protected, firms are sustainable and labour markets operate well. Social justice and the democratisation of the workplace cannot be achieved if workers in non-standard employment are excluded from the labour relations system.
Mercantile Law
LL. D.