Whatever Happened to the Right to Security of Employment as a Fundamental Right?

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Whatever Happened to the Right to Security of Employment as a Fundamental Right?

Author André van Niekerk

ISSN: 2413-9874
Affiliations: Judge of the Labour Appeal Court; BA LLB, MA (Witwatersrand), LLM (Leicester)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 805 – 817
https://doi.org/10.47348/ILJ/v46/i2a5

Abstract

The article addresses conceptions of fairness in dismissals for misconduct. It examines the development of a balancing metaphor, where the adjudicator is a dispassionate party, placing into the scales the respective interests of employee and employer, the fairness of a dismissal being determined by the direction in which the scales tip. The article argues that the balancing metaphor does not sufficiently acknowledge the right to work security as a fundamental right, protected by s 23 of the Constitution. It further suggests that a test of proportionality as a basis to test the fairness of a dismissal better resonates with constitutional principles.

An Arbitrary Ground — 10 Years On

by | Mar 30, 2025 | ILJ, ILJ V46 I2

An Arbitrary Ground — 10 Years On

Author Talita Laubscher

ISSN: 2413-9874
Affiliations: Partner, Bowmans; B Iur (Free State), LLB (Free State), LLM (Emory USA)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 818 – 846
https://doi.org/10.47348/ILJ/v46/i2a6

Abstract

The Employment Equity Act 55 of 1998 gives effect to the constitutional right to equality where an employment relationship exists. Section 6, containing the prohibition on unfair discrimination, was amended in August 2014. An important addition was the inclusion of the phrase ‘or on any other arbitrary ground’. This article examines the meaning of an arbitrary ground, particularly in the context of s 6(4) equal treatment cases. Interestingly, in the majority of these cases, the differentiation was introduced by a collective agreement and in none of these did the applicants seek to set the agreements aside. While a collective agreement per se is not a defence to an unfair discrimination claim, differentiation introduced by collective agreements must be carefully considered, because the grounds for discrimination in these instances are most often apparently neutral grounds. These would not support direct discrimination claims, but they may give rise to those that are indirect. These claims are evidence intensive and stereotypes do not assist claimants. Outside the equal pay context, an arbitrary ground has been found to exist in the form of overly broad workplace rules infringing an employee’s constitutional rights.

Social Security in South Africa: Overview of Developments — Historical Perspectives

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Social Security in South Africa: Overview of Developments — Historical Perspectives

Author Marius Olivier

ISSN: 2413-9874
Affiliations: Honorary Professor, Faculty of Law, Nelson Mandela University; Extraordinary Professor, Faculty of Law, North-West University; Adjunct-Professor, School of Law, University of Western Australia; BA LLB (Pret), LLD (Unisa)
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 847 – 870
https://doi.org/10.47348/ILJ/v46/i2a7

Abstract

This contribution concerns an assessment of the historical development of formalised social security in South Africa. It firstly provides a historical overview of the development of non-contributory social security (social assistance) in accordance with distinct time periods, noting that initial non-state interventions have gradually been augmented and with time displaced by initially restrictive but later expanding arrangements serving particular categories of the poor. Until 1993 racial inequality remained a distinct hallmark of social assistance provisioning, the removal of which resulted in an exceptionally comprehensive system of state support with powerful direct and indirect, distributional impact. Secondly, historical perspectives on the development of contributory social security (social insurance) are reflected on, per risk category. Key risk benefit categories (in old age, unemployment, occupational injuries and diseases, health care, sickness, maternity, disability, and dependants’ domains) have incrementally been captured in public and private contributory arrangements, and coverage progressively extended to include mostly vulnerable workers, the majority of whom are Africans. Finally, and in conclusion, an overall assessment of historical developments is provided. An integrated and calibrated social security system is still lacking, while significant gaps remain, both system- and institutionally wise. Key categories of vulnerable persons, notably the long-term unemployed and informal economy and self-employed workers, remain largely excluded. A shift from non-state and private provisioning to larger, public scheme arrangements has been discernible, but uneven: among others, the establishment of the envisaged National Social Security Fund has yet to materialise.

Deviations from Design: Regulating Strikes in a Land of Unrest

by | Mar 30, 2025 | ILJ, ILJ V46 I2

Deviations from Design: Regulating Strikes in a Land of Unrest

Author Clive Thompson

ISSN: 2413-9874
Affiliations: Director, CoSolve
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 871 – 898
https://doi.org/10.47348/ILJ/v46/i2a8

Abstract

Strike action has played a pivotal role in advancing and securing the socio-economic interests of workers in South Africa, first for white workers, then for black. Rights were won only in the aftermath of serious and sustained labour unrest, for white workers in the twenties, for black workers fifty years later. None of the legislative attempts at modulation ever quite went to plan, and the degree of deviation has arguably increased across the decades. The Industrial Conciliation Act 11 of 1924 set out to institutionalise conflict in respect of the favoured class of workers while ignoring the majority. But eventually demographics, international pressure and a groundswell of political and industrial resistance obliged the minority government from the late seventies and into the eighties to open an adjusted but unstable labour relations system to all. The Labour Relations Act 66 of 1995 (LRA) heralded a modern regime of great promise. That potential has not been realised under the weight of accumulated historical disadvantage and grievance, and the inability of the new constitutional and political order to repel corruption, violence and incompetence. It is difficult to see how the objects of the 1995 Act can be realised if — among other weighty challenges — the social parties cannot find a way to grow more co-operative, productive and competitive workplaces. Ironically, the voluntary suspension of the hard-fought right to strike might need to feature as part of any workplace culture reset.

Social justice as an antidote to poverty and inequality: 30 years into democracy, what still needs to be done?

by | Mar 17, 2025 | SLR, SLR V35 I2

Social justice as an antidote to poverty and inequality: 30 years into democracy, what still needs to be done?

Author: Kholeka Gcaleka

ISSN: 1996-2193
Affiliations: LLB LLM
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 93-114
https://doi.org/10.47348/SLR/2024/i2a1

Abstract

Thirty years after South Africa’s first democratic elections, the nation grapples with the paradox of being “democratic, yet unequal and impoverished”. This contribution examines the persistent socio-economic disparities that continue to plague South African society. Despite the progress made since apartheid, the deep-rooted legacies of injustice remain evident in the high levels of poverty and inequality. The concept of social justice, enshrined in the Constitution of the Republic of South Africa, 1996, is more than a moral imperative. It is a legally enforceable right that encompasses access to basic necessities like housing, healthcare, and education. However, translating constitutional promises into tangible improvements for the most vulnerable citizens remains a significant challenge. Social justice is not solely the responsibility of the Government. It is a collective mission for all South Africans to rectify past injustices and build a society based on democratic values, equality, and fundamental human rights. The role of institutions like the Public Protector of South Africa in upholding accountability and ensuring the protection of citizens’ rights is highlighted as crucial for the realisation of social justice.