Deeltitels en sommige van die gevolge van die wegval van die reghebbende eienaar

by | Apr 13, 2025 | TSAR, TSAR 2025 I2

REGSPRAAK

Deeltitels en sommige van die gevolge van die wegval van die reghebbende eienaar

Authors: JC Sonnekus en EC Schlemmer

ISSN: 1996-2207
Affiliations: University of the Witwatersrand
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 2, 2025, p. 411-432
https://doi.org/10.47348/TSAR/2025/i2a14

Abstract

A unit in a registered sectional titles scheme is classified as an independent thing that can be the object of real rights. The legislature regulates in detail the legal principles applicable when eg a flat in an existing apartment building becomes a “unit” or “section” when the building is subsequently registered as a sectional title scheme. However, no provision is made for a reversal of the legal position relating to a single unit apart from the rest of the units in a building, when the building is no longer to be considered as a sectional title scheme and the unit reverts back to its original status of a flat forming part of the erf on which the apartment building had been constructed. The legislature merely provided for the regulation of all interests involved should the scheme be terminated after eg the demolition or destruction of the building encompassing the scheme.
The status of a thing as potential independent object of a real right does not depend on the existence of a legal subject as holder of the real right with the particular thing as object. This is evidenced in Roman-Dutch law and most Continental European legal systems sharing the same Roman law principles by the acknowledgment of the category of things as res derelicta. In the absence of a legal subject having acquired a real right over the thing after meeting all the requirements for the acquisition of a real right, no real right exists regarding such thing, however, the status of the abandoned thing as res derelicta is unaffected. Res derelicta belongs to the category of res nullius and any legal subject can, by meeting the requirements of eg occupatio acquire an original “new” real right of ownership over that object. South African law never received any of the feudal norms that were founded on the regalia of the Middle Ages governing feudal law, as part of Roman-Dutch common law. Consequently, the state does not have an automatic entitlement to all res derelictae under the term bona vacantia.
These inherent principles of South African property law also apply to juristic persons as holders of real rights because the principles of property law are not replaced by a secondary set of property law principles merely because the subject of a subjective right is a juristic and not a natural person.
In the Harbour Terrace Body Corporate case a company SD, the registered holder of the real rights of ownership and all the encompassing entitlements of unit 57 in a sectional title scheme, was deregistered in 2007. It consequently lost its legal personality and independent existence as a juristic person. Irrespective of this, the deregistered company remained reflected as the owner of the unit in the deeds register. Some of the different aspects involved in this scenario are discussed against the background of the submitted fact that it is unjustified to assume that South African law must be the same as English law and consequently to presume that the state acquired the property rights of the deregistered company ex lege as bona vacantia to the exclusion of the shareholders who are entitled to an aliquot share in the distribution of the surplus assets of the erstwhile company. Had the state indeed acquired the real rights in 2007, it should also be liable for payment of all the levies due since.

Labour Court Dispute Resolution: Effective and Expeditious?

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

Labour Court Dispute Resolution: Effective and Expeditious?

Author Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Senior Counsel, Johannesburg Bar (Sandton); Adjunct Professor of Law, Nelson Mandela University
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 706 – 721
https://doi.org/10.47348/ILJ/v46/i2a1

Abstract

This article explores two things. Firstly, whether the Labour Court has delivered on the statutory promise of providing for the effective and expeditious resolution of labour disputes, particularly in relation to the review of arbitration awards of the Commission for Conciliation, Mediation and Arbitration — the conclusion being that it has not. Secondly, what plans are in place to address the backlog, and how the court might reduce the inflow of reviews by adopting a uniform approach to their determination — thus enhancing the predictability of the outcome.

Minority Unions and Special Interest Groups in the Workplace

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

Minority Unions and Special Interest Groups in the Workplace

Authors Wilhelmina Germishuys-Burchell & Christoph Garbers

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa; Associate Professor, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 722 – 748
https://doi.org/10.47348/ILJ/v46/i2a2

Abstract

The appropriateness of the Labour Relations Act 66 of 1995 (LRA 1995) has been questioned for its effect on the plight of minority union members or a minority group of employees who share a significant and discrete interest in the workplace. This article considers the vision of majoritarianism in the LRA 1995 as a product of criticism of the Industrial Conciliation Act 28 of 1956 (subsequently renamed the Labour Relations Act (LRA 1956)), and its support by the Constitutional Court. It does so with reference to representation at disciplinary enquiries, during retrenchment consultation, and during collective bargaining to show that after almost 30 years of the current LRA we have perhaps come full circle to the point where the Act is open to the same criticism levelled against the LRA 1956 all those years ago.

The Evolution of the Right to Freedom of Association: A South African Perspective

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

The Evolution of the Right to Freedom of Association: A South African Perspective

Authors Rochelle Le Roux & Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Associate Professor, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 749 – 782
https://doi.org/10.47348/ILJ/v46/i2a3

Abstract

Although individual jurisdictions have since developed their own nuances, the right to freedom of association in the labour context in jurisdictions acknowledging such a right stem from the Freedom of Association and Protection of the Right to Organise Convention 87, adopted by the International Labour Organisation (ILO) in 1948. In South Africa, this right is emphasised in ss 18 and 23 of the Constitution, with further regulation provided by the Labour Relations Act (LRA). Many of the provisions in the LRA can potentially raise issues, but this article focuses on its explicit expression in chapter II of the LRA. The article examines several contentious aspects of this chapter: the lack of a registration requirement for trade unions, the definition of ‘lawful activities’ for unions, an employee’s right to join a union ‘subject to its constitution,’ and whether a right not to associate can be inferred. It further considers the interface between the right to freedom of association and closed and agency shop agreements. The conclusion is that, despite South African courts generally adopting a liberal understanding of the right to freedom of association, their approach regarding employees’ rights to be represented by chosen trade unions has been surprisingly conservative.

Sectoral Bargaining: The First 100 Years — and Beyond?

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

Sectoral Bargaining: The First 100 Years — and Beyond?

Authors Darcy du Toit & Shane Godfrey

ISSN: 2413-9874
Affiliations: Emeritus Professor and Research Coordinator at the Centre for Transformative Regulation of Work at the University of the Western Cape; Honorary Research Associate at the University of Cape Town and Research Associate at the Centre for Transformative Regulation of Work at the University of the Western Cape
Source: Industrial Law Journal, Volume 46 Issue 2, 2025, p. 783 – 804
https://doi.org/10.47348/ILJ/v46/i2a4

Abstract

The article combines an empirical historical overview of sectoral bargaining with a legal analysis of the post-1994 legislative framework for sectoral bargaining. The empirical evidence provides strong indications that deindustrialisation and the burgeoning services sector are undermining industrial unionism and the system of sectoral bargaining, with the exception of centralised bargaining in the public service. The legal analysis builds on this assessment by highlighting the 1995 Labour Relations Act’s failure, although aiming to promote sectoral bargaining, to take account of the changes emerging in the labour market in its provisions for collective bargaining. While subsequent amendments have sought to catch up with labour market developments and shore up the bargaining council system in the private sector, they have fallen short. The root of the problem is the failure to provide a mechanism to include non-standard employees and other marginalised workers in the collective bargaining system, either via existing unions or by allowing scope for their organisations to participate in collective bargaining. The article ends by proposing some guidelines for a social dialogue process that would extend the reach of sectoral bargaining.

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.