FORUM CONTRIBUTION: Be careful what you wish for…?
Roger Ronnie draws a balance sheet of the position of the trade union movement today. While analysing trade unions as organisations dealing with more than simply wages and employment conditions, the author also considers their political limitations and assesses the gains and losses flowing from the 1995 LRA from a trade union perspective.In particular, the advent and growing entrenchment of “trade union legalism” within South Africa’s capitalist system is highlighted. The article concludes by making recommendations on how trade unions can try to avoid these pitfalls and promote the rights of workers more effectively.Download full text.
FORUM CONTRIBUTION: Get rights right in the interests of security of tenure
Review of Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by Aninka Claassens & Ben Cousins; xv and pp 392 with accompanying DVD. Legal Resources Centre & UCT Press, Cape Town, 2008 Ann Pope gives a detailed overview of a book on a topic that has assumed critical importance in South Africa and, at the same time, analyses and comments on difficulties and dilemmas that have been encountered in securing indigenous land rights.The book was collated following the enactment of the Communal Land Rights Act 11 of 2004 and the Traditional Leadership and Governance Framework Act 41 of 2003, in preparation for a challenge to the constitutionality of the former Act by alleging that it “undermines the rights of rural people to make them less secure than before”. Judgment in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006)  ZAGPPHC 127 (30 October 2009) has since been delivered, its findings being mostly in favour of the applicants. An analysis of the judgment is followed by further reflection on a number of issues. The discussion shows that, while the applicants in Tongoane can rightly claim victory for succeeding in having several provisions of the CLRA declared unconstitutional, important questions remain unanswered. The author suggests that the implications of such omissions will need careful and thoughtful treatment by the Constitutional Court during the confirmation hearing at the beginning of March 2010. At the time of publication the judgment in this hearing was not yet available.Download full text.
FORUM CONTRIBUTION: Ten years of the CCMA – An assessment for labour
Ronald Bernikow examines certain key areas of the CCMA’s operations and the challenges it faces within the broader context of our labour laws. The article deals with the current state of CCMA service delivery as well as the debate over what has been termed the “over-proceduralisation” of dispute resolution at the CCMA.It discusses areas where the CCMA can, from the perspective of labour, be said to be performing well, as well as pointing to various shortcomings or gaps in the statutory dispute resolution framework. It concludes that the CCMA is a legitimate and important institution that has promoted a common industrial citizenship and provided a platform for confronting future challenges.Download full text.
FORUM CONTRIBUTION: The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme (see Who We Are) deals with the principle of legality as enunciated in Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC). In this matter an accused person was charged with rape after committing a grossly indecent sexual assault on a nine-year-old girl.Although the act in question did not fall within the common law definition of rape, the Regional Court felt justified in developing the common law definition in terms of section 39 of the Constitution to include the act in question and duly convicted the accused. The High Court upheld this decision. The article examines the reasoning of the Constitutional Court in determining the meaning of the principle of legality and applying the right to non-retrospective punishment, as entrenched in section 35(3)(l) and (n) of the Constitution, under extremely sensitive and challenging circumstances.Download full text.
FORUM CONTRIBUTION: A summary of some recent cases of interest to the African continent
Sam Rugege discusses a few recent cases dealing with issues of African continental interest. These include the right of defence force members to join trade unions and to participate in protest action (South Africa); the right of the press to freedom of expression and the duty to inform the public on matters of public interest (Zimbabwe); the right of prisoners to vote in national elections (South Africa); the right of a citizen spouse to have her foreign spouse live permanently with her in her home country (Zimbabwe); the power of the National Assembly to suspend a member of the assembly and the right of a member to freedom of expression (South Africa); and succession rights in African kingdoms in the era of republican democracy (Uganda).Download full text.
FORUM CONTRIBUTION: Comment on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment
Drawing on their experience in drafting an HIV/AIDS workplace policy for the University of the Western Cape, Tania Vergnani and Nikki Schaay reflect on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment in terms of its ability to assist in defining and refining HIV/AIDS policies. They conclude that the Code takes a limited view of workplace responsibility and advocate that employers should play a greater, more pro-active role in the prevention of the spread of the disease and of discrimination, as well as in providing treatment for those living with HIV/AIDS.Download full text.
FORUM CONTRIBUTION: The plight of domestic workers: The elusiveness of access to adequate housing
South Africa’s transformative Constitution calls for a holistic approach to realising the right to human dignity. To marginalised groups, such as domestic workers, this right is not confined to achieving better wages and working conditions; it touches every aspect of their lives. Central to this endeavour is the quest for adequate housing. This article discusses the experience of a housing cooperative consisting predominantly of domestic workers in campaigning for adequate housing, especially at local government level, as part of the struggle to achieve a secure and dignified existence. While identifying formidable obstacles, it also shows the interconnectedness of the various challenges and the need for a integrated approach in addressing them.Download full text.
FORUM CONTRIBUTION: Effects on the employment relationship of the insolvency of the employer: A worker perspective
Peter Carolus, Thierry Galani Tiemeni and Kurt Ziervogel, look critically at the Insolvency Act prior to the amendments of 2002 and the limited protection it gave workers on the insolvency of the employer. The effect of the Act was that workers’ contracts of employment were automatically terminated by their employer’s insolvency, leaving them with a limited preferent claim against the employer’s insolvent estate.The authors discuss how the 2002 amendments to the Insolvency Act and the LRA addressed these problems by providing for the suspension rather than termination of employment contracts in the event that the business can be saved or sold as a going concern. They also discuss the right of workers as creditors to appoint their own liquidator to supervise the liquidation process and conclude with a detailed examination of challenges faced by trade unions on issues arising from the insolvency of employers.Download full text.
FORUM CONTRIBUTION: Fair trial rights, freedom of the press, the principle of “open justice” and the power of the Supreme Court of Appeal to regulate its own process
In this case study Wium de Villiers discusses the Constitutional Court’s endorsement of the SCA decision in SABC Ltd v National DPP and Others, to the effect that it would only allow Shabir Shaik’s application for leave to appeal to be broadcast if it was satisfied that it would not inhibit justice.Professor de Villiers argues that section 12 of the Constitution should be recognised as a generic residual due process right, analogous to that of section 7 of the Canadian Charter of Rights and Freedoms, which would lead to a substantial reduction in the inconsistencies in the Constitutional Court’s jurisprudence revealed by that decision.Download full text.
FORUM CONTRIBUTION: Labor Law for the 21 st century: Stalled reform in the United States
This document by Karl Klare, an eminent labour law scholar and one of the originators of the critical legal studies tradition in the USA, is a slightly shortened version of his submission to the Dunlop Commission, appointed by President Clinton to investigate the future of management-labour relations in the USA. Critically reviewing the development of the US system of collective bargaining, Klare elaborates a more general analysis of the role of labour law at the close of the 20th century.From a South African perspective, it highlights the advances in labour rights embodied in the LRA, but also helps to identify areas where further innovation may be called for. It offers a challenging framework for evaluating the debate surrounding the LRA and other labour statutes in this country.Download full text.