The evolution of the right to fair procedure in dismissals for misconduct

by | Mar 16, 2025 | ACTA, ACTA 2024

The evolution of the right to fair procedure in dismissals for misconduct

Author André van Niekerk

ISSN: 1996-2088
Affiliations: BA LLB MA (Witwatersrand) LLM (Leicester); Judge of the Labour Appeal Court of South Africa
Source: Acta Juridica, 2024, p. 55-86
https://doi.org/10.47348/ACTA/2024/a3

Abstract

The obligation to follow a fair procedure before dismissing an employee for misconduct, certainly in the private sector, has its origins in the concept of the unfair labour practice, introduced in 1979 by way of an amendment to the Labour Relations Act 28 of 1956. This article traces the history of the development of a right to fair procedure before a decision to dismiss, and attempts to identify the normative basis of and justifications for that right. These included international standards, comparative law, the principles of administrative law applicable to public sector employees, and employer best practice. By 1994, a ‘criminal justice’ model had evolved, in which pre-dismissal procedures were equated with procedures applied in a criminal court. The Labour Relations Act 66 of 1995 (in particular, the Code of Good Practice: Dismissal) attempted to reduce the cost of elaborate workplace procedures. The legislative package introduced a system of compulsory arbitration for disputed dismissals, with a primary remedy of reinstatement for dismissals found to be substantively unfair, and compensatory awards for dismissals found to be substantively fair, but procedurally unfair. This approach reflects both respect for the autonomy and dignity of the employee, and a justification based on maximising the general welfare. The general welfare is maximised by accommodating the diversity and flexibility of procedural standards, promoting rational decision-making in disciplinary matters, and eliminating the cost of duplicated processes. The Code thus ultimately seeks to combine the normative ideals of worker protection with the achievement of productive efficiency.

Beyond bargaining: New horizons for consultation

by | Mar 16, 2025 | ACTA, ACTA 2024

Beyond bargaining: New horizons for consultation

Author Clive Thompson

ISSN: 1996-2088
Affiliations: BA Honours (Stell) LLB (UCT); Director, CoSolve; Research affiliate, African Centre for Coastal Palaeoscience, Nelson Mandela University
Source: Acta Juridica, 2024, p. 87-116
https://doi.org/10.47348/ACTA/2024/a4

Abstract

For unions worldwide, winning the right and space to engage in collective bargaining, so empowering them to forge a better deal for their members, has been a central goal for over a century. Bound up with that process has been the pursuit of a right and capacity to strike. Consultation is a more subtle form of engagement, one that has attracted less attention and resources. However, once the raw battles over union recognition and basic employee protections and rewards have been played out, influence in the workplace begins to matter as much as power. A sophisticated framework for consultation affords employees considerable latitude to shape their workplaces even as employers gain from a more fruitful engagement with their workforce. This article examines how different legal systems deal with the often intertwined processes of bargaining and consultation, contrasting some European, Japanese and Anglosphere track records. It also compares in closer detail the South African and Australian experiences, advocating a heightened role for consultation in workplace affairs.

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

by | Mar 16, 2025 | ACTA, ACTA 2024

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

Authors Evance Kalula & William Mokofe

ISSN: 1996-2088
Affiliations: LLB (Zambia) LLM (London) PhD (Warwick); Professor Emeritus of Law, University of Cape Town; Independent Chairperson, ILO Committee on Freedom of Association; LLB (UFH) LLM LLD (South Africa); Advocate of the High Court of South Africa; independent researcher
Source: Acta Juridica, 2024, p. 117-148
https://doi.org/10.47348/ACTA/2024/a5

Abstract

This contribution is a tribute to Halton Cheadle’s work over the years, particularly his significant contribution to labour legislation and policy development and the enhancement of the role of international labour standards (ILS) in the SADC sub-region and elsewhere in Africa. Ever since the establishment of the International Labour Organisation (ILO) more than a hundred years ago, ILS has been a persuasive instrument in the search for universal democratic governance norms worldwide. Nowhere has that influence and impact been as visible as in developing countries. The impact of ILS in Southern Africa has been profound, not only in the struggle against racial discrimination, for instance in Zimbabwe and South Africa, but also in fostering labour rights through what was later designated as ‘decent work’. In more recent years, the promotion of ILS has been extended through the reform of labour legislation and policy. Cheadle has been deeply involved in the work of labour law reform, starting with South Africa in 1994, efforts that culminated in the current Labour Relations Act 66 of 1995, and then other African countries, such as Nigeria and Tanzania. His contribution continued when he served as a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). In an era that can be characterised as one of ‘global polycrisis’, the importance of ILS as a well-tested yardstick, renewed to address the challenges of a rapidly changing world of work, has become greater than ever before. This article will examine and analyse selected areas related to democratic governance developments.

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

by | Mar 16, 2025 | ACTA, ACTA 2024

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

Authors Debbie Collier & Shane Godfrey

ISSN: 1996-2088
Affiliations: BA LLB (Rhodes) LLM PhD (UCT); Professor of Law and Director of the Centre for Transformative Regulation of Work, University of the Western Cape; BA (Hons) MA PhD (UCT) BProc (UNISA); Honorary Research Associate at the University of Cape Town; Honorary Senior Research Fellow, Global Development Institute, University of Manchester; Associate, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Acta Juridica, 2024, p. 149-182
https://doi.org/10.47348/ACTA/2024/a6

Abstract

This article examines the role of ILO technical assistance in lawmaking and labour law reform, focusing on assistance provided in Lesotho prior to enactment of the Labour Act of 2024. ILO technical assistance often involves the use of external experts with significant influence over the development of domestic labour laws, raising questions about integrity and inclusivity in the law-making process. Drawing on our involvement in Lesotho’s labour law reform efforts between 2014 and 2024, the article considers key aspects of ILO assistance in the country’s unique socio-economic context. It highlights the importance of ensuring that labour laws are not only technically compliant with ILO conventions, but are also shaped by the deliberations of domestic stakeholders and are socially relevant and responsive to local employment and economic realities.

The Constitutional Court: Negotiating between constitutionalism and political power

by | Mar 16, 2025 | ACTA, ACTA 2024

The Constitutional Court: Negotiating between constitutionalism and political power

Authors Dennis Davis & Hugh Corder

ISSN: 1996-2088
Affiliations: BCom LLB (Cape Town) MPhil (Cantab); Judge Emeritus of the High Court of South Africa; Judge President Emeritus of the Competition Appeal Court of South Africa; Honorary Professor of Law, University of Cape Town and University of the Western Cape; BCom LLB (Cape Town) LLB (Cantab) D Phil (Oxon); Professor Emeritus of Public Law, University of Cape Town
Source: Acta Juridica, 2024, p. 183-221
https://doi.org/10.47348/ACTA/2024/a7

Abstract

The constitutional democratic order has been in place in South Africa for 30 years. During this period the Constitutional Court has established both its authority at the apex of the administration of justice and its legitimacy as the final arbiter of the lawfulness of the exercise of public power in all its manifestations. During its life, the Constitutional Court appears to have been guided in its approach to litigation before it by diverse concerns, often linked to strong personalities within its ranks and the prevailing socio-political context. It is difficult, however, to divine an overarching theory of adjudication to animate its jurisprudence. Such guidance can be discerned by attempts to ‘periodise’ the output of the Constitutional Court, as was attempted by Issacharoff in 2009. The courts have also been criticised and attacked in the public domain by party politicians who seek to divert attention from their unconstitutional conduct to scapegoat the judiciary; this is often accompanied by scandalous assaults on the constitutional order itself. Absent a unifying theory of adjudication in line with the transformative constitutional values at its core, we argue in this article that the Constitutional Court appears vulnerable to such unscrupulous undermining and is insufficiently able to defend itself and so retain public confidence in its stature, independence and fierce impartiality. Through an analysis of key judgments over the past fifteen years in particular, we seek to identify and propose the key elements of such a foundational theory of adjudication, applicable also in the vital sphere of extending constitutional prescripts into the private sphere, as contemplated by the Constitution.

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

Authors: Kolawole Olusola Odeku & Mudzielwana Takalani

ISSN: 1996-2185
Affiliations: Professor, Department of Public and Environmental Law, University of Limpopo; Senior Tutor, Department of Public and Environmental Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 135 – 162
https://doi.org/10.47348/SAMLJ/v36/i2a1

 Abstract

South Africa is experiencing erratic electricity supply daily dubbed ‘load shedding’. The impact and effect of electricity outages are being felt in all sectors of the economy and society at large, small businesses are no exception. Small businesses play a vital role in the economy and can be said to be the lifeblood of the economy by tackling social, and socio-economic challenges such as unemployment, inequality, and poverty. Nowadays, unreliable electricity supply and high tariffs are impeding entrepreneurial activities, particularly small businesses. The government has announced that load shedding would continue at least, for the next two years. To alleviate electricity poverty and ameliorate the impact and effect of the electricity crisis on small businesses, various financial incentive interventions become imperatives. To this end, through government institutions in collaboration with the financial sector particularly the banking industry, financial incentives are being deployed and used to alleviate financial burdens threatening the existence and survival of many small businesses. Against this backdrop, this article looks at the selected but germane financial incentive interventions that, even, amid the erratic electricity supply, will allow small businesses to continue to operate, thrive, grow, and prosper.

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

Author: Henk Kloppers

ISSN: 1996-2185
Affiliations: Professor, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 163 – 186
https://doi.org/10.47348/SAMLJ/v36/i2a2

 Abstract

South Africa has low levels of financial literacy and clients often, to their own detriment, take up specialised and complex financial products without a proper understanding of the product due to a lack of financial knowledge. This situation places the client at a clear disadvantage and the clients are unable to make informed decisions and because the advice tendered by the financial advisor did not enable the client to make an informed decision based on the client’s factually established or reasonably assumed level of knowledge. The Financial Advisory and Intermediary Services Act along with the General Code of Conduct for Authorised FSPs and their Representatives (the GCC) is aimed at protecting consumers in the financial services industry. The GCC, as one of the primary legal instruments for consumer protection in the financial services industry, specifically requires an advisor to provide advice based on the client’s factually established or reasonably assumed level of knowledge. Clients who are not satisfied with the advice provided by an advisor may approach the Ombud for Financial Services Providers (the FAIS Ombud) when this duty imposed by the GCC is not adhered to. Molate v Discovery Life Ltd (04862/15–16/GP2) serves as an example of the application by the FAIS Ombud of this specific duty. This contribution will briefly reflect on financial literacy and then explore financial literacy-related consumer protection in the GCC. Thereafter the contribution considers how this protection has been enforced by the FAIS Ombud by examining Molate v Discovery Life Ltd where the issue of the client’s level of knowledge of long-term insurance products was specifically placed under the microscope. The contribution concludes with recommendations to guide financial advisors providing advice in the context of the client’s factually or reasonably assumed level of knowledge.

NFTS—Buyer’s remorse and a flash in the pan? Some thoughts on the nature and usefulness of NTFS in virtual worlds and the metaverse

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

NFTS—Buyer’s remorse and a flash in the pan? Some thoughts on the nature and usefulness of NTFS in virtual worlds and the metaverse

Author: Wian Erlank

ISSN: 1996-2185
Affiliations: Professor, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 187 – 202
https://doi.org/10.47348/SAMLJ/v36/i2a3

 Abstract

NFTs or Non-Fungible Tokens have recently made their appearance as a phenomenon branching off from cryptocurrencies and blockchains. Lately the discussions about NFTs have focused on the investment value of NFTs and the risks associated with the investment and trade in such NFTs, which have led to huge capital losses similar to those seen in the speculative investment and trade in cryptocurrencies such as Bitcoin. After the initial hype, the value of NFTs as investment vehicles has mostly collapsed with many early adopters now experiencing buyer’s remorse. From this background the use and value of NFTs in several online virtual world or gaming environments is discussed with a focus on whether they add value to or detract from the user experience. While NFTs do appear to have the potential to function as a new addition to the existent types of digital property objects in terms of digital assets or virtual property, the use case as a new technological feature in online gaming environments remains contentious. It is argued that the future usefulness of NFTs will increase as the metaverse is developed and NFTs are not restricted to various proprietary ecosystems. Once someone can use their NFTs linked object in an unrestricted common environment such as the envisaged metaverse, the use case for NFTs will be much more convincing. The speculative aspect of investing in NFTs and the often ludicrous amounts of money spent on such nebulous objects set the stage for the discussion.

A legal analysis of the Nigerian National Inspector General for Tax Crimes Commission Bill, 2022

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

A legal analysis of the Nigerian National Inspector General for Tax Crimes Commission Bill, 2022

Authors: Oyesola Animashaun & Howard Chitimira

ISSN: 1996-2185
Affiliations: Associate Professor, Faculty of Law, Kwara State University; Research Director, Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 203 – 217
https://doi.org/10.47348/SAMLJ/v36/i2a4

 Abstract

The number of Ministries, Departments and Agencies (‘MDAs’) listed on the Nigerian Federal Civil Service official website is 1316. Although this figure is unwieldy, the cost of governance and the debt profile of these civil services are equally astounding. This prompted the Federal Government of Nigeria to set up the Oronsaye Presidential Committee on the Reduction and Rationalization of Federal Government Parastatals, Commissions and Agencies to consolidate the MDAs and reduce governance costs. However, the Nigerian National Assembly is currently deliberating on the National Inspector General for Tax Crimes Commission Bill, 2022 (‘the Bill’) with the aim of creating a National Inspector-General for Tax Crimes Commission. This article analyses the Bill and the various statutes aimed at curbing tax crimes such as the Economic and Financial Crimes Establishment Act, 2004 (‘EFCC Act’) and the Federal Inland Revenue Services (Establishment) Act 2007 (‘FIRS Act’) in order to determine whether the Bill is a duplication of these Acts and agencies. The adopted methodology is doctrinal. This article provides that creating a National Inspector- General for Tax Crimes Commission will inevitably lead to an increase in the cost of governance, overlapping functions, friction and conflicts with agencies such as the Federal Inland Revenue Services (‘FIRS’), Economic and Financial Crimes Commission (‘EFCC’), the Revenue Mobilisation, Allocation and Fiscal Commission (‘RMAFC’) and the Nigeria Customs Service. Accordingly, there is a need to harmonise the existing revenue agencies, tax administration and enforcement mechanisms.

De Facto and Shadow Directors: Lessons from New Zealand

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

De Facto and Shadow Directors: Lessons from New Zealand

Authors: Lindi Coetzee & Bernardus Hermanus Botha

ISSN: 1996-2185
Affiliations: Deputy Dean Faculty of Law Nelson Mandela University; LLD student and Post Graduate Associate Faculty of Law Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 218 – 250
https://doi.org/10.47348/SAMLJ/v36/i2a5

 Abstract

The term ‘director’ is commonly limited to de jure directors. The Companies Act applies to those individuals who fall within the definition of ‘director’. However, de jure directors are not the only type of director found in practical corporate settings. De facto directors are not appointed as directors but are held out by companies as directors. Shadow directors are persons who have not been validly appointed as directors and are not held out by a company as directors, but who exercise some measure of control over the affairs of a company. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen it fit to regulate de facto and shadow directors and has done so for over 70 years. It is uncertain whether the wording of the definition of ‘director’ in the South African Companies Act, includes de facto and shadow directors. The practical effect of uncertainty is the absence of clear avenues of accountability to those who occupy a position of power within a company without being validly appointed. This article illustrates the far-reaching consequences of the non-regulation of de facto and shadow directors, and a possible solution is suggested.