Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE | ISSN: 2077-4907JOURNAL OF THE FACULTY OF LAW, UWC | ISSN: 2077-4907
Author/s: The Editors
Author/s: Richter, Marlise
The article points to the importance of access to information to a properly functioning democratic society. That principle is reflected in section 32 of the Constitution and in the Promotion of Access to Information Act (PAIA). The author notes, however, that there have been problems with PAIAa†s implementation. These include its dependence on a cooperative attitude on the part of the holders of information and lack of effective penalties to compel the prompt production of information, Using the Treatment Action Campaign's action on behalf of people living with HIV/AIDS as a case study, the author also highlights the deleterious effect that non-implementation of PAIA has on the realisation of socio-economic rights. The article concludes with a number of recommendations for the more effective implementation of PAIA.
Author/s: Louw, Andre
The article tackles a contentious subject: the implications of transformative policies in the field of professional sport and, by extension, in employment more generally. One central concern is the effect of such policies on [he employment rights of professional sports players; another is the future of professional sport itself. While most of South Africa's top sporting teams remain predominantly white, the author argues that there is an inherent contradiction between the principles of 'universality' (emphasising 'demographic representation' in sports learns) and 'merit' (emphasising performance standards irrespective of race). The article puts forward a far-reaching critique of government policy from the perspective of upholding 'merit' and concludes by suggesting that 'the ANC's current intervention in sport has occasioned a shift from 'no normal sport in an abnormal society' to one of 'abnormal sport in a normalising society'.
Author/s: Wallis, Malcolm
While labour law has evolved to remedy the deficiencies in the common law, Malcolm Wallis argues, the common law is not as deficient as some believe; rather, common-law principles are often misapplied or misunderstood. There is a synthesis between the common law and labour legislation. The legislature has recognised that a contractual relationship lies at the heart of employment, and the common law of summary dismissal is part of the law of dismissal. The author goes on to observe that, no matter to what extent labour law is derived from statute, the common law will always be present as the repository of principles applicable to statutory interpretation.
Author/s: Benjamin, Paul
The author critically examines section 197 of the LRA, a section that has been the subject of much debate. The author discusses the initial 'emasculation' of section 197 by way of judicial interpretation and the reasons for it. Some of these difficulties were remedied by the decisions of courts of appeal and by legislative amendment. However, the author points out that there are still several difficult questions to be addressed, including the interrelationship between sections 197 and 198 (which deals with temporary employment services) as well as so-called 'second-generation contracting-out'. The article concludes by considering the role that section 197 might play in the context of broader labour market change in South Africa as a means of externalising employment.
Author/s: Weiss, Manfred
The article addresses the bold but thus far unsuccessful endeavour of the LRA to promote worker participation in managerial decision-making by means of workplace forums. A basic obstacle, the author argues, is uncertainty on the part of trade unions as to the implications of establishing these structures. The article then examines the historical relationship between trade unions and works councils in Germany. Here, too, the trade unions initially felt threatened by representative employee bodies at workplace level and strongly resisted them. During the twentieth century, however, trade unions learned to cooperate with works councils and establish a fruitful division of labour. While there may be some tensions between works councils and trade unions, such tensions tend to reflect the friction between the macro-perspective of the trade unions and the micro-perspective of the works councils, which can also arise if trade unions operate at both levels. While stressing that conditions in Germany have been very different from those In South Africa, the author concludes that the German experience may help to establish a more objective framework of discussion that could assist in advancing the debate in South Africa beyond its present impasse.
Author/s: Hepple, Bob
The article addresses a theme that has become dominant in the discourse surrounding South Africa's labour legislation: is the labour market over-regulated? It starts by noting that the LRA was enacted at the very moment when South Africa's re-entry into the world economy exposed it to the global competition. The 'orthodox view', the author observes, is that globalisation undermines the ability of nation states to regulate their own labour markets, resulting in a 'race to the bottom'. Contrary to this, the author argues that nations can prosper in the global economy by building institutional advantages on a floor of human rights, and that rights-based regulation could give South Africa a comparative advantage in global trade and investment. Such advantage, it is stressed, is social as well as economic, and a rights-based system empowers citizens to resist the deleterious effects of globalisation. Labour rights can thus be reconciled with global competitiveness, provided they are used rationally to correct market failures and promote economic efficiency.
Author/s: Cheadle, Halton
The article addresses three key issues relating to collective bargaining under the LRA: the meaning of the right to bargain collectively, the constitutional attack on the extension of collective agreements and the current state of sector-level bargaining. The author points out that we can distinguish a range of rights and obligations in the right to bargain collectively, all of which are given effect by the LRA, and endorses the finding that there is no general constitutional duty to bargain. Addressing the constitutionality of the LRA's provision for the extension of bargaining council agreements to cover non-parties, the author concludes that this is a justifiable limitation of the right to engage in collective bargaining. The last part of (he article reveals that bargaining councils are in decline and endangered by government's intention to exempt smaller enterprises from centralised bargaining. [n the author's view this is unnecessary, given that there is already provision for exemptions from bargaining council agreements.
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Law, Democracy & Development (LDD) is an accredited journal - that is, approved by the Department of Education for the publication of subsidised research output. This means that the articles we publish are subject to stringent quality control. All articles, unless otherwise indicated, are peer-reviewed - that is, anonymously assessed by independent experts. In addition, we also publish reviews, commentaries or other contributions which the editors consider topical or important but which have not been subjected to the formal assessment process - for example, contributions by emerging researchers (such as those in our ALAD section), keynote speeches by leading commentators and the like. These non-refereed items are identified as Forum contributions.
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