An overview of indirect unfair discrimination protection in South Africa in the context of the Employment Equity Act’s affirmative action measures

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

An overview of indirect unfair discrimination protection in South Africa in the context of the Employment Equity Act’s affirmative action measures

Author: Elsabé Huysamen

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile & Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 142 Issue 4, p. 774-799
https://doi.org/10.47348/SALJ/v142/i4a7

Abstract

This article examines the relationship between affirmative action and protection against indirect discrimination in South African employment law, particularly under the Employment Equity Act 55 of 1998. Ultimately, the article aims to establish the extent to which reliance on indirect discrimination protection still plays a role outside the shadow of the EEA’s affirmative action measures. While both mechanisms aim to promote transformative substantive equality, they do so through distinct, yet overlapping, means. Affirmative action imposes proactive obligations on designated employers to address systemic disadvantage, potentially reducing the scope for indirect discrimination claims. However, this article argues that indirect discrimination remains a crucial safeguard, especially in contexts where affirmative action is absent, poorly implemented, or limited in scope. Key limitations of the EEA’s affirmative action measures include its application only to designated employers and its focus exclusively on race, gender and disability. Additionally, the enforcement of affirmative action obligations relies solely on administrative mechanisms, offering little recourse for aggrieved individuals. The article argues that indirect discrimination protection fills these gaps by identifying and addressing covert systemic inequalities. Ultimately, the article asserts that indirect discrimination retains significant legal and transformative value, particularly as a corrective mechanism for structural inequality. It concludes that affirmative action and indirect discrimination should be viewed as complementary tools rather than substitutes in pursuing equality and social justice in post-apartheid South Africa.

Children flourishing: Evolving capacities, human dignity and the realisation of children’s rights in South Africa

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

The rise of judicial review of South Africa’s treaty-making powers

Author: Hannah Woolaver

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 822-856
https://doi.org/10.47348/SALJ/v142/i4a8

Abstract

This article examines recent developments in judicial review of South Africa’s treatymaking powers. It analyses court decisions that have expanded the procedural and substantive review of the executive’s authority to enter into and withdraw from treaties. The article argues that while these developments aim to enhance accountability, they risk intruding on the executive’s foreign affairs discretion and creating conflicts between domestic and international obligations. Drawing on comparative practice, it proposes refinements to limit standing, timing of review, and standards of scrutiny. The article concludes that clearer constitutional delineation of treaty powers may be needed to balance democratic accountability, rights protection, and effective foreign policy conduct.

The rise of judicial review of South Africa’s treaty-making powers

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

The rise of judicial review of South Africa’s treaty-making powers

Author: Hannah Woolaver

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 822-856
https://doi.org/10.47348/SALJ/v142/i4a9

Abstract

This article examines recent developments in judicial review of South Africa’s treatymaking powers. It analyses court decisions that have expanded the procedural and substantive review of the executive’s authority to enter into and withdraw from treaties. The article argues that while these developments aim to enhance accountability, they risk intruding on the executive’s foreign affairs discretion and creating conflicts between domestic and international obligations. Drawing on comparative practice, it proposes refinements to limit standing, timing of review, and standards of scrutiny. The article concludes that clearer constitutional delineation of treaty powers may be needed to balance democratic accountability, rights protection, and effective foreign policy conduct.

Beyond punishment: Context and correctional supervision as a restorative sentence — An analysis of S v Mphahlele

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

Beyond punishment: Context and correctional supervision as a restorative sentence — An analysis of S v Mphahlele

Author: Amanda Spies

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 142 Issue 3, p. 439-454
https://doi.org/10.47348/SALJ/v142/i3a1

Abstract

This note examines correctional supervision as a sentencing option for serious crimes by analysing the Mphahlele judgment, and explores whether correctional supervision incorporates (or should incorporate) elements of restorative justice. It critically assesses whether such an approach risks distorting traditional restorative justice principles and underscores the need to engage with justice as a transformative process — one that shifts the focus from individualised notions of crime and punishment to the structural inequalities that underpin criminal behaviour. Additionally, the note adopts a feminist perspective to interrogate the role of gender in sentencing, considering in particular whether identifying the accused as a mother and primary caregiver in Mphahlele reinforces harmful stereotypes.

Thorndike’s law of effect and its influence on legal practitioners’ ethics: Lembore v Minister of Home Affairs

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

Thorndike’s law of effect and its influence on legal practitioners’ ethics: Lembore v Minister of Home Affairs

Authors: Michele van Eck & Helen Kruuse

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg; Associate Professor, Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 142 Issue 3, p. 455-466
https://doi.org/10.47348/SALJ/v142/i3a2

Abstract

The Lembore v Minister of Home Affairs case highlights the unethical practice of recycling affidavits in court applications, a practice that the courts repeatedly condemn. Legal practitioners continue this misconduct despite clear judicial instructions not to do so. To understand this persistence, we turn to behavioural theory by examining Thorndike’s law of effect. By doing so, we suggest that sanctions alone are insufficient to curb unethical conduct; instead, a dual approach is needed. This dual approach comprises external adjustments that include eliminating situational opportunities, enhancing regulatory oversight, and ensuring swift enforcement of sanctions. It also includes internal adjustments which require a mindset shift, where legal practitioners prioritise justice over profit. Without these reforms, unethical practices will persist, and cases such as Lembore will continue to emerge. Breaking this cycle demands both systemic change and professional introspection to restore ethical integrity in the legal profession.