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: Towards a more activist parliament more engaged with civil society - F1
This contribution consists of the edited text of a speech delivered by Yunis Carrim at the launch of the Community Law Centre’s Parliamentary Programme in Cape Town on 20 October 2010, and is reproduced here because of the importance of the issues it addresses in the context of South Africa’s evolving democratic practice.The central conclusion is that "neither Parliament nor civil society organisations are sufficiently recognising the value of effective engagement between them. Yet if they worked creatively together they would be able to put the executive under more pressure to deliver more effectively. ... The state alone cannot ensure a significant improvement in service delivery and development. ... So new opportunities are opening up for a more active role for civil society organisations. Let us make creative use of this. It’s over as much to you as it is to Parliament to do so. Are you up to it?"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: South African court rules on the state's obligation to prevent mother-to-child transmission of HIV
In Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) the Pretoria High Court found in favour of the Treatment Action Campaign and others and against the Minister of Health on the issue of mother-to-child HIV transmission. The steps taken by the state in this regard, it was held, were not in compliance with its duty to take reasonable measures to achieve the progressive realisation of the right to access to health care services.On appeal, the Constitutional Court in Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) similarly found that existing state policy fell short of the constitutional standard and ordered the state to ôdevise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV. Geoff Budlender, who acted as attorney for the applicants in the High Court and subsequently in the Constitutional Court, provides a brief comment on the context and controversies surrounding the justiciability of socio-economic rights.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: A New Constitution and a Bill of Rights
Deputy Chief Justice Pius Langa argues that, while the advent of the constitutional era is very significant, the Constitution is only a guideline for nurturing the life of the nation. With rights go responsibilities.Being able to exercise our rights also requires us to respect the rights of others. The courts, legislature and executive can create the space for citizens to engage with the project of building a new society, but it is up to the citizens to work with others to create the kind of society in which all the people are able to maximise their personal potential and fully enjoy their rightsDownload full text.
FORUM CONTRIBUTION: Commentary on communications decided by the African Commission on Human and Peoples’ Rights in 2004
Waruguru Kaguongo reports on issues arising from decisions handed down by the African Commission on Human and Peoples’ Rights in 2004. A total of 12 communications were considered in that year, with seven communications being decided on the merits. .The article is divided into two main sections: issues implicit in the determination of admissibility, and those arising from consideration of the merits. On admissibility, the most often considered criterion was the requirement to exhaust local remedies. In determining compliance with this criterion, it is argued, the Commission displayed consistency with its previous jurisprudence. The exhaustion of local remedies, however, tended to take precedence over the other criteria and, it is suggested, the Commission failed to take the opportunity to further elaborate on the application of other criteria. In the relation to the merits, the author argues that the communications raised issue relating to evidence and the lack of consistency in how it affects decisions; the limitation of rights; the role of the Commission versus national jurisdictions; fair trial guarantees; interpretation of international treaties and the administrative capacity of the Commission and its effect on decisionsDownload full text.
FORUM CONTRIBUTION: African case law review
Sam Rugege's report on recent cases of interest to the African continent focuses on one of the recent Zimbabwean land invasion cases, highlighting the tension between a court system seeking to maintain the rule of law and an executive resistant to it. It also discusses a case relating to the customary law of succession in South Africa.