Dress Codes, Grooming Standards and South African Employment Law: Comparative Insights on Workplace Discrimination Based on Mutable Appearance Characteristics

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Dress Codes, Grooming Standards and South African Employment Law: Comparative Insights on Workplace Discrimination Based on Mutable Appearance Characteristics

Authors D J Viviers

ISSN: 1996-2177
Affiliations: Attorney, Phatshoane Henney Attorneys; Research Fellow, Department of Mercantile Law, University of the Free State
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 897 – 930

Abstract

Appearance-based discrimination is a prevalent concern in workplaces worldwide. Employers’ subconscious appearance preferences seem to infiltrate their employment policies and practices, causing employees who do not meet certain appearance standards to suffer discrimination. Employers’ discretion to impose dress codes and grooming standards where such criteria are unrelated to the inherent nature of the job effectively curb employees’ right to freedom of expression, as well as their individuality and personal autonomy. Various jurisdictions have started enacting legislation to govern and outlaw appearance discrimination in the employment arena, and employees worldwide increasingly turn to judicial forums for relief in this regard. As South Africa still lags behind the rest of the world in dealing with this issue, this article attempts to contribute to the development of the law by exploring the concept of appearance prejudice in employment against the backdrop of unfair discrimination and equality principles in South Africa. The article further compares South Africa to the jurisdictions of the United States and the European Union, particularly the United Kingdom. I investigate whether appearance discrimination based on mutable (alterable) appearance characteristics currently enjoys sufficient recognition in South African law, whether it warrants protection and, if so, what forms of protection may be most relevant and effective.

Evaluating a Different Model of Clinical Legal Education in South Africa: Community Consultations, Advocacy and the Right of Access to Information

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Evaluating a Different Model of Clinical Legal Education in South Africa: Community Consultations, Advocacy and the Right of Access to Information

Authors Fola Adeleke, Sithembiso Mabaso

ISSN: 1996-2177
Affiliations: School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 874 – 896

Abstract

In 2013, the Wits Law Clinic rolled out a revamped model of clinical legal education (‘CLE’) in partnership with the South African Human Rights Commission. This involved the development of a specialist law clinic, founded on the right of access to information, and which included client consultations by students in different community locations. It also involved the implementation of a human-rights theory that posits that the exercise of the right to information can unlock the delivery of other socio-economic rights. In this article we review the first two years since the project’s implementation, and conduct an analysis of the uniqueness of this model in comparison to existing CLE models in South Africa. The case studies discussed in this article show that the exercise of the right of access to information has been presented as a means to an end, and an opportunity for legal practitioners to assess potential causes of action on behalf of their clients. We argue that the new CLE model introduced at Wits has developed a new form of learning for students that can aid the resolution of disputes concerning human-rights violations, particularly in areas where litigation is a last resort.

Electronic Signatures and Non-Variation Clauses in the Modern Digital World: The Case of South Africa

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Electronic Signatures and Non-Variation Clauses in the Modern Digital World: The Case of South Africa

Authors Yeukai Mupangavanhu

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 853 – 873

Abstract

A non-variation clause prescribes writing and signature for any variation of a written contract. An oral variation of a written contract is thus ineffective as a non-variation clause entrenches itself and all the other terms of the contract, including a non-cancellation clause, against oral variation. Where parties have reduced the subsequent oral agreement to writing through an e-mail, it must be signed. Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash & another 2015 (2) SA 118 (SCA) is significant as it is the first case directly to confirm the legal validity of the use of an e-mail and an ordinary electronic signature when varying or cancelling a contract which contains a non-variation clause. The Supreme Court of Appeal stated in this case that a contract can be formally varied by an exchange of e-mails between the parties with an ordinary signature. An advanced electronic signature in such a case is not required.

Conduct Constituting Anticipatory Breach of Contract

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Conduct Constituting Anticipatory Breach of Contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 820 – 852

Abstract

This contribution considers the development of the doctrine of anticipatory breach of contract in South African law culminating in the case of Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd. Although the decision has authoritatively acknowledged important developments in the South African law on anticipatory breach, its implications have not yet been fully recognised, and certain developments proposed in Datacolor are potentially open to criticism. This article argues that the confirmation in Datacolor that repudiation is an immediate breach assessed using an objective test creates an entirely objective unified basis for anticipatory breach in South African law that is to be welcomed. However, it is also argued that the further developments suggested in Datacolor — that any predicted non- or malperformance should amount to an anticipatory breach and that a claim for damages should arise immediately upon the breach — are not desirable developments, and that these obiter comments should not be followed.