Whither affirmative action?

Whither affirmative action?

Authors Shamima Gaibie & Jeremy Phillips

ISSN: 1996-2088
Affiliations: BA LLB (Witwatersrand) LLM (London); Senior Director, Cheadle Thompson & Haysom Inc (CTH); BA LLB (Cape Town) LLM (Fort Hare); Senior Associate, CTH
Source: Acta Juridica, 2025, p. 283-311
https://doi.org/10.47348/ACTA/2025/a9

Abstract

This article critically examines affirmative action in South Africa, tracing its constitutional and legislative development, judicial interpretation and practical challenges, with comparative insights from India and Malaysia. It highlights the evolution from the cautious, flexible approach in Van Heerden to the restrictive framework in SAPS v Solidarity obo Barnard, which prioritises valid Employment Equity Plans (EEPs) and narrowly limits challenges to the implementation of remedial measures. Post-Barnard jurisprudence confirms that affirmative action measures are unlawful only where EEPs are deficient, misapplied or regionally misaligned, particularly when numerical targets function as rigid quotas. The 2023 Employment Equity Amendment Act and the 2025 sectoral targets introduce ambitious transformation goals; however, their implementation is constrained by the limited availability of suitably skilled candidates from designated groups. A comparison of South Africa’s decentralised sector-wide approach with India’s structured reservation system and Malaysia’s public-sector quotas reveals the need to align affirmative action with labour market realities, educational pipelines and economic policy. The article concludes that substantive workplace transformation cannot rely solely on quotas or targets. Instead, a holistic, multi-dimensional strategy is required – integrating legislative enforcement with targeted social, educational and economic interventions – to effectively redress historic disadvantage and achieve meaningful equality.

Whither social security?

Whither social security?

Author Marius Olivier

ISSN: 1996-2088
Affiliations: BA LLB (Pretoria) LLD (South Africa); 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; Visiting Fellow: Refugee Law Initiative, School of Advanced Study, University of London (UK)
Source: Acta Juridica, 2025, p. 312-356
https://doi.org/10.47348/ACTA/2025/a10

Abstract

The contribution highlights the need for critical reform of the South African social security system, despite significant advances made over the last few decades. The required reforms must be informed by the need for a reconceptualised understanding of the comprehensive social protection objectives to be achieved, a context-sensitive appreciation of the social security risk concept and the associated vulnerabilities underlying the social security response framework, and an enhanced comprehension of work. Incorporating economic and environmental risks in the social security scope would ensure that social security could meaningfully respond to climate change concerns and loss of livelihood support. This would also provide a basis for accommodating those engaged in care work and in the informal economy. Substantive equality considerations, enshrined in both the Constitution and international law, would strengthen the case for including excluded and marginalised categories of persons, including the long-term and structurally unemployed, and help to inform system redesign to better accommodate disadvantaged women. The concerning trend towards new exclusions and limitations in South African social security must be confronted.

The Labour Relations Act at 30: Navigating challenges and opportunities in the age of artificial intelligence

The Labour Relations Act at 30: Navigating challenges and opportunities in the age of artificial intelligence

Author Letlhokwa George Mpedi

ISSN: 1996-2088
Affiliations: B Juris LLB (Vista) LLM (Rand Afrikaans) LLD (Johannesburg); Vice-Chancellor and Principal, Professor of Labour and Social Security Law, Faculty of Law, University of Johannesburg; Visiting Professor, Faculty of Law, University of Cape Coast, Cape Coast, Ghana; Visiting Professor, Norman Paterson School of International Affairs, Carleton University, Ottawa, Canada
Source: Acta Juridica, 2025, p. 357-381
https://doi.org/10.47348/ACTA/2025/a11

Abstract

Reflecting on the 30 years since the Labour Relations Act 66 of 1995 (LRA) was passed in South Africa raises important questions about the progress made in promoting fair labour practices, and the challenges that remain. The creation of the Commission for Conciliation, Mediation and Arbitration was a key achievement in making workplace relations more democratic, and providing accessible conflict resolution for both workers and employers. However, with the rapid advancements in technology, particularly the rise of artificial intelligence (AI), the following question arises: are current labour laws adapting to these swift changes? This contribution highlights some of the successes and ongoing difficulties of the LRA, by examining its role in regulating employment relations and raising critical issues: Are workers sufficiently protected in an age of automation? How might innovative approaches, such as online dispute resolution, enhance access to justice? Furthermore, how can South Africa’s labour framework remain robust and inclusive amidst technological disruptions? The conclusion is that the vision for the future should be one that balances the potential of AI with the essential need to protect workers’ rights in an ever-evolving economic landscape.

Climate-responsive regulation for heat stress in South African workplaces

Climate-responsive regulation for heat stress in South African workplaces

Author Cecile de Villiers

ISSN: 1996-2088
Affiliations: LLB LLM LLD (Stellenbosch). Lecturer, Department of Commercial Law, University of Cape Town
Source: Acta Juridica, 2025, p. 382-423
https://doi.org/10.47348/ACTA/2025/a12

Abstract

Rising temperatures caused by climate change increase the risk of heat stress for employees. In South Africa, heat exposure is expected to be the most common climate impact on occupational health and safety (OHS), and it requires an urgent and targeted legislative response. While the Climate Change Act 22 of 2024 promotes a coordinated and cooperative legal response to climate adaptation, its interaction with labour legislation in advancing adaptation objectives remains to be seen, as the Act is yet to be fully implemented. This article highlights that existing labour legislation offers insufficient protection against climate-related heat stress risks in the workplace, and that the fragmented legislative framework hampers climate adaptation. This is illustrated through a discussion of the legislative regulation of heat stress risks by the Occupational Health and Safety Act 85 of 1993 and the Physical Agents Regulations, which were introduced in 2025. OHS measures interact with minimum employment conditions under the Basic Conditions of Employment Act 75 of 1997, and regulatory examples from Spain offer guidance for reform in the context of extreme heat. The article also suggests that collective bargaining under the Labour Relations Act 66 of 1995 offers a valuable supplementary response to protect the heat health of employees. Drawing on OHS guidance by the International Labour Organization and the experience of Australia, the article argues that climate-responsive regulations under OHS legislation are required to respond to climate impacts. Such regulations would better integrate the above labour legislation with climate adaptation measures that protect employees against increasing heat stress risks.

The silent revolution: Professional sport and the irrelevance of employment law? Two decades since Matfield

The silent revolution: Professional sport and the irrelevance of employment law? Two decades since Matfield

Author Andrew Breetzke

ISSN: 1996-2088
Affiliations: BA LLB (Stellenbosch), PG Dip (Employment Law and Social Security) (Cape Town); CEO of the South African Cricketers’ Association; Director of the World Cricketers’ Association
Source: Acta Juridica, 2025, p. 424-450
https://doi.org/10.47348/ACTA/2025/a13

Abstract

This article provides an overview of the significant changes in the power dynamic between athletes and governing bodies and how these changes impact the contracting of professional athletes in South Africa, specifically in rugby and cricket. The article examines the initial embracing of standard employment law contracting models in professional team sport and how these are being replaced by atypical employment relationships and free agency, at the instance of the athletes. This change has occurred at a time when South African professional teams have enjoyed unparalleled success, making it possible to argue that success for a business entity may be achievable without there being employment contracts in place with the key individuals responsible for that success.