‘Deemed’ to be an employee: Adopting the teleological interpretation of statutes

‘Deemed’ to be an employee: Adopting the teleological interpretation of statutes

Authors Marius van Staden, Stefan van Eck

ISSN: 1996-2185
Affiliations: Doctoral Candidate, University of Pretoria; Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 416 – 433

Abstract

Recent legislative amendments to the Labour Relations Act 66 of 1995 have introduced so-called ‘deemed’ provisions of employment to assist in the identification of the parties to triangular employment relationships. This article explores the significance of statutory interpretation in identifying the parties to the employment relationship and the approach of the judiciary in interpreting the term ‘deemed’. The ‘teleological model’ of statutory interpretation is described and the interpretive approach of the Labour Appeal Court is assessed against this model. Teleological interpretation requires that legislative provisions be interpreted to advance their purpose in light of constitutional values. The interpretation that best advances constitutional values must be preferred. In determining such a constitutionally appropriate meaning of the provision, the courts must also have regard to the textual, contextual, teleological, historical, and comparative elements in which the provision occurs. In a recent decision, the Labour Appeal Court failed to consider key constitutional values, the history of the legislative provision, and the comparative law dimension in which the relevant legislative provision is found. The court made little attempt to understand the historical circumstances that led to the adoption of the statutory provision and considered no comparative experience.

The notion of conflict of interest from a South African insolvency law perspective

The notion of conflict of interest from a South African insolvency law perspective

Authors Juanitta Calitz

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 395 – 415

Abstract

One of the burning issues in South African insolvency law is the regulation of insolvency practitioners. Practitioners are involved in almost every aspect of the insolvency process and occupy a significant position of trust over the affairs of insolvent companies and individuals. In South African insolvency law, there is currently no statutory framework requiring persons acting as insolvency practitioners to be licensed or otherwise authorised to carry out such work. The article unpacks the concept of conflict of interest in South African insolvency law and continues to make recommendations for the development of an efficient and effective regulatory model. An analysis of the concept of conflict of interest within the context of international norms and standards is included together with a discussion of the legal developments in South African insolvency law. The purpose of this article is to argue that the reform of any area of South African insolvency law and more specifically the regulation of insolvency law, should be done against the background of a well-managed policy development process and generally accepted social and economic goals.

Racism in the Workplace: A View From the Jurisprudence of Courts in the Past Decade

Racism in the Workplace: A View From the Jurisprudence of Courts in the Past Decade

Authors Bongani Khumalo

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 377 – 394

Abstract

South Africa is an intensely wounded society with more than 343 years of racist colonial and apartheid rule that has negatively affected society and workplace relations. This article highlights and exposes the continued prevalence of racism in the South African workplace. The constitutional and legislative framework, specifically, provisions from the Employment Equity Act 55 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, which are pertinent to this issue, are briefly discussed. The article presents a reflective glance at case law from 2007 to 2017 where the courts had to grapple with the issue of workplace racism. A picture emerges from this holistic view of the courts’ approach that there is no place for racists in South African society, and that employers should adopt a firm stance when dealing with cases involving racism. This article argues in favour of adopting an unconventional approach that advocates mechanisms to deal with workplace racism remedially and punitively which is proportional to its social and legal unpleasantness. Such an approach would encourage an open conversation about the issue of race in the workplace and would contribute towards rooting out racism.