Whither dismissal law?

by | Jan 31, 2026 | ACTA, ACTA 2025

Whither dismissal law?

Authors Rochelle le Roux & Peter le Roux

ISSN: 1996-2088
Affiliations: BJuris LLB (Port Elizabeth) LLM (Stellenbosch) PGDip (Employment Law and Social Security) (Cape Town) LLM (Anglia Ruskin) PhD (Cape Town). Professor, Faculty of Law, University of Cape Town; BJuris (Rand Afrikaans) LLM (South Africa) LLM (London) Executive Consultant at ENSafrica
Source: Acta Juridica, 2025, p. 178-212
https://doi.org/10.47348/ACTA/2025/a6

Abstract

The 30th anniversary of the enactment of the Labour Relations Act 66 of 1995 (LRA) provides a useful opportunity for reassessing the dismissal law established by the Act. This article examines the state of dismissal law with reference to three key features: the labour dispute resolution regime created by the LRA; the role of the common law in dismissal matters; and the current legislative location of dismissal based on unfair discrimination. The article also questions the continued validity of some of the modalities in the LRA supporting these features. While concluding that there is nothing wrong with the fundamentals of current dismissal law, both in respect of its treatment of substantive and procedural fairness, and in respect of the dispute resolution model that supports it, the article argues that the changing nature of employment and the pressures on the dispute resolution institutions created by the LRA require a change to some of the modalities of dismissal law. Taking a long view – 30 years – of dismissal law, the article makes tentative proposals that might make dismissal law more agile and responsive to the changing nature of employment.

Through the lens of an idealist: Imagining the position of strike law in South Africa by the year 2055

by | Jan 31, 2026 | ACTA, ACTA 2025

Through the lens of an idealist: Imagining the position of strike law in South Africa by the year 2055

Author Mlungisi Tenza

ISSN: 1996-2088
Affiliations: LLB LLM LLD (South Africa); Associate Professor, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2025, p. 213-242
https://doi.org/10.47348/ACTA/2025/a7

Abstract

The Constitution guarantees workers the right to strike. Workers use strike action as a bargaining tool when employers fail to meet their demands or address their grievances in the workplace. The right to strike and the strike itself have helped workers to achieve various things in the workplace, including improved working conditions and increased wages. Exercising the right to strike has resulted in not only positive acts that benefit workers, but also in the loss of employment through retrenchments due to protracted strikes; in addition, many workers have lost their lives due to strikes becoming violent. The struggle to liberate workers from the shackles of poverty, inequality, the ever-increasing rate of unemployment and differences in pay continues. This means that the weaponry of strike action is still necessary if South Africa wants to address the plight of workers. This article examines whether the law relating to strikes in the next 30 years will still be relevant in the labour relations environment in South Africa. I argue that strikes are becoming less popular, and very few workers or employees will continue to use them due to changes in the way that business is conducted. This is further affected by the increasing use of technology, including the introduction of gig work and apps to perform work. In addition, trade unions usually convene strikes and recruit people who are in formal employment; however, by 2055, the number of people joining unions will have decreased as few people will be in formal employment. Workers will mostly rely on the internet to voice their grievances against employers, and the latter, fearing reputational damage, may succumb to employee demands. This will have the same outcome as if workers were to go on strike. The result will be a situation where an individual worker and their employer will decide on their terms and conditions of work. The employer alone will decide on wage increases or other matters affecting workers, because collective bargaining will play a less important role.

Reforming the Labour Relations Act to realise collective rights for the informal economy: Lessons from the domestic and street vending sectors

by | Jan 31, 2026 | ACTA, ACTA 2025

Reforming the Labour Relations Act to realise collective rights for the informal economy: Lessons from the domestic and street vending sectors

Authors Pamhidzai Bamu & Marlese von Broembsen

ISSN: 1996-2088
Affiliations: LLB LLM PhD (Cape Town); Law Programme Coordinator for Africa, Women in Informal Employment: Globalizing and Organizing (WIEGO); BA (Stellenbosch) LLB (Cape Town) MA (Dev Studies) (Western Cape) LLM (Harvard) PhD (Cape Town); Associate Professor, Centre for the Transformative Regulation of Work (CENTROW), University of the Western Cape and Senior Labour Rights Researcher, Women in Informal Employment: Globalizing and Organizing (WIEGO)
Source: Acta Juridica, 2025, p. 243-282
https://doi.org/10.47348/ACTA/2025/a8

Abstract

The ILO’s Committee on Freedom of Association has developed jurisprudence that extends the right to freedom of association to ‘all workers without any distinction whatsoever’. Section 23 of the Constitution enshrines the collective labour rights of ‘every worker’. Yet, the Labour Relations Act (LRA) excludes workers in informal employment, who comprise over a third of South Africa’s workforce. Written as a thought piece, and placing domestic workers (who de facto are informally employed) and street vendors (who de iure work informally) at the centre, this article reimagines the LRA to account for the realities of workers in the informal economy: their workplaces (including private homes and public space); multiple employers (in the case of domestic workers) or no employer (in the case of street vendors); and in the case of workers who work in the public space, the central role of local government in determining access to the workplace and conditions of work. Drawing on three theoretical frameworks – Freedland and Kontouris’ ‘personal work relations’, Hepple’s typology of the functions of labour law, and power resources theory – the paper explores how the right to freedom of association, collective bargaining and the right to strike might be realised for the two occupational groups, and outlines the legislative reforms that would be needed.

Whither affirmative action?

by | Jan 31, 2026 | ACTA, ACTA 2025

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?

by | Jan 31, 2026 | ACTA 2025

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.