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.

Learning from protected areas – Distilling lessons for a potential future OECM statutory framework in South Africa

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

Learning from protected areas – Distilling lessons for a potential future OECM statutory framework in South Africa

Author: Alexander Paterson

ISSN: 1996-2193
Affiliations: BSocSci LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 115-143
https://doi.org/10.47348/SLR/2024/i2a2

Abstract

As 2030 rapidly approaches, governments are grappling with how, within the short remaining timeframe, to meet their commitments under the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework. The Global Biodiversity Framework’s Target 3 commits governments to incorporate at least 30% of their territory in two main forms of area-based instruments: protected areas and other effective area-based conservation measures (“OECMs”). The former are relatively well understood. The origins of the international system for protected areas dates back several decades. There exists extensive international guidance highlighting, amongst many things, the important role and influence of law on protected areas. This has in turn informed the domestic development, implementation and refinement of protected areas legislation in many countries. In stark contrast, OECMs are a far newer phenomenon. The concept was only formally defined in 2018 and no international guidance exists framing the role and influence of law on OECMs. Owing to their contemporaneity, governments are still in the process of contemplating how to provide for the domestic recognition of OECMs. Some commentators have called for deeper reflection on the role and influence of law in enabling, securing, regulating and supporting OECMs. Three potential reasons underpin these calls, namely that both constitute area-based instruments with the majority of their definitional elements being very similar in nature; if law has historically had an important role and influence on protected areas, lessons could potentially be drawn from this experience in the context of OECMs; and both count towards the same 30×30 target, with the inherent logic being that to ensure some measure of equivalence and consistency in treatment, both must be enabled, secured, regulated and supported through law. Using South Africa as a case study, the article explores lessons that could be learnt from the implementation of, and reforms to, the country’s protected areas legislation, for any future OECM statutory framework. The discussion of these potential lessons is broken down under an array of themes, namely system planning and site selection; recognition and long-term security; governance diversity; management, monitoring and reporting; and financing and incentives.

Clearing the interpretative air – The need to make good (air quality) law and to make good law work

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

Clearing the interpretative air – The need to make good (air quality) law and to make good law work

Author: Jenny Hall

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 144-177
https://doi.org/10.47348/SLR/2024/i2a3

Abstract

A corollary of the environmental rule of law requirement that good laws must be passed is that these laws must also be implemented effectively. Effective implementation frequently relies on good bureaucratic decision-making which can be challenging where decisions are non-routine and complex. This challenge is evident in the practical application of so-called “listed activities”, a widely used approach in pollution and waste management regulation to trigger an obligation to obtain an environmental authorisation or licence to undertake the listed activity. When courts hear disputes on the design and implementation of these listed activities, they can play a valuable role in providing guidance on sound decision-making approaches, and course-correcting existing approaches if necessary. For the court’s impact to be realised optimally, however, it is important that judicial decision making itself is based on sound reasoning and that it contains an element of predictability which follows from the employment of a consistent approach to legislative interpretation. For the interpretation of environmental legislation, this contribution proposes a reframing of the purposive interpretative approach set out in the much-cited Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) that aims to achieve what I call ‘substantive ecological purposivism’. It examines three judgments on listed activities passed in terms of the National Environmental Management: Air Quality Act 39 of 2004 through the lens of this approach and points out both inconsistencies in the three judgments as well as how the decisions in some instances could have been more closely aligned with the environmental objectives of legislation if the systematic employment of a substantively ecological purposive approach had been adopted.

Not “radical” enough: Disrupting the narrative of Ermelo’s grand transformative potential in public basic education

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

Not “radical” enough: Disrupting the narrative of Ermelo’s grand transformative potential in public basic education

Author: Lorette Arendse

ISSN: 1996-2193
Affiliations: LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 178-194
https://doi.org/10.47348/SLR/2024/i2a4

Abstract

The Constitutional Court decision in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC) is often celebrated in education law jurisprudence. The Constitutional Court’s call for the radical transformation of public education is zealously repeated in academic discourse. In particular, the apex Court is lauded for the formulation of principles applicable to school governing bodies on how to develop constitutionally compliant language policies in terms of section 29(2) of the Constitution of the Republic of South Africa, 1996. This provision guarantees the right to education in the language of choice in public educational institutions subject to the criterion of reasonable practicability. In the subsequent decision of Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2019 12 BCLR 1479 (CC), the Constitutional Court evaluated the constitutionality of another language policy, this time in the higher education context, but adopted a markedly different approach to the interpretation of section 29(2). Using a particular conceptualisation of transformation as theoretical lens and by contrasting the judicial approaches in the two Constitutional Court judgments, this contribution advances the idea that the Court in Ermelo was myopic in its approach by failing to recognise that some school governing bodies reinforce systemic racial inequality in public schools through the adoption of language policies.

The divergent approaches of the Constitutional Court to the right to life and ubuntu and the implications for civil society

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

The divergent approaches of the Constitutional Court to the right to life and ubuntu and the implications for civil society

Authors: Keith Matthee and Shaun de Freitas

ISSN: 1996-2193
Affiliations: BA LLB BD; BProc LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 195 – 219
https://doi.org/10.47348/SLR/2023/i2a5

Abstract

There are indications of an unduly deferential attitude towards the justices of the Constitutional Court when they pronounce on profound moral issues which deeply affect the moral fabric of South African society. A key to addressing this deference is to demonstrate the divergent approaches of the Constitutional Court when making such pronouncements. An awareness of these differing approaches has the potential to influence civil society to participate confidently in the process of giving the Constitutional text representative forms of meaning and, in the process, of buttressing democracy. As an illustration of the divergencies stemming from the Constitutional Court regarding fundamental moral matters, the most important of all the rights in the Constitution of the Republic of South Africa, 1996 has been chosen, namely, the right to life, more specifically pertaining to the death penalty and abortion. Accompanying this is a critical investigation into a foundational hermeneutic chosen by the Constitutional Court when giving content to the right to life, namely, ubuntu. Also, naturally emanating from this contribution is the advancement of right to life jurisprudence in South Africa.

The present as history: Workers’ struggles and the law during and after apartheid

by | Mar 16, 2025 | ACTA, ACTA 2024

The present as history: Workers’ struggles and the law during and after apartheid

Authors Kally Forrest & Edward Webster

ISSN: 1996-2088
Affiliations: Former trade unionist and editor of the South African Labour Bulletin; Associate of the Southern Centre for Inequality Studies, and the Society, Work and Politics Institute; Fellow at the Johannesburg Institute for Advanced Studies; Edward Webster passed away on 6 March 2024. At the time, he was a Research Professor at the Southern Centre for Inequality Studies and held the
position of Professor Emeritus in the School of Social Sciences at the University of the Witwatersrand
Source: Acta Juridica, 2024, p. 1-31
https://doi.org/10.47348/ACTA/2024/a1

Abstract

Black workers in South Africa in the 1970s fought successfully for their right to be included in the law. Through militant struggles, and with the aid of pioneering lawyers like Halton Cheadle, they produced an inclusive Labour Relations Act (LRA) and the attendant Basic Conditions of Employment Act. Through its independent power base connected to the shopfloor, the labour movement gave trade unions the capacity to mobilise and restrain members, which they used to negotiate to expand legal rights and organisational space and pursue worker control at workplace and industry levels. However, the LRA, and its employer–employee binary, marginalises informal workers, and these workers are now waging a battle for recognition. The struggle for informal workers’ rights unfolds in a more challenging environment than the 1970s, and no significant changes in law have emerged in the last twenty years of organising. This makes redefining the LRA complex, as informal workers may be own account workers and micro-employers. Labour law is not responsive to the needs of workers in the informal economy and an experimental environment is encouraged. The world of work has changed to such an extent that perhaps we now need the equivalent of the Wiehahn Commission, which transformed the world of labour in the 1980s.

An elusive pursuit: Challenging invalid dismissals – then and now

by | Mar 16, 2025 | ACTA, ACTA 2024

An elusive pursuit: Challenging invalid dismissals – then and now

Author Paul Benjamin

ISSN: 1996-2088
Affiliations: BA LLB (UCT) LLM (Warwick); Director, Cheadle Thompson & Haysom Inc; Extraordinary Professor, Faculty of Law, University of the Western Cape
Source: Acta Juridica, 2024, p. 32-54
https://doi.org/10.47348/ACTA/2024/a2

Abstract

The independent trade union movement that emerged from the 1973 Durban strikes developed legal strategies to protect their members, who were primarily African workers excluded from participation under the Industrial Conciliation Act 28 of 1956. Chief among these strategies was the institution of litigation seeking to nullify dismissals that violated statutory victimisation provisions in those laws that covered African workers. The apartheid-era bench was largely hostile to this approach, and it was not until the 1982 full bench decision in National Union of Textile Workers v Stag Packings that orders of nullity and reinstatement became a possibility. However, by this time the powers of the industrial court, which had been established in 1980, had been extended to include status quo orders and the unions were able to achieve unprecedented protection for their members as the industrial court asserted its unfair labour practice powers. This article explores the legal strategies reflected in the litigation and engaged scholarly writing that gave rise to this important judgment and comments on its significance for contemporary labour law in South Africa.