Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

Author: Elisa Rinaldi

ISSN: 1996-2185
Affiliations: Assistant Lecturer, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 181 – 211


With a growth in cross-border employment, the territorial limitations  placed on the adjudication of cross-border employment disputes is  incongruent to the development of employment and the subsequent  employment relationship. The question of adjudication in the Labour  Court rests predominantly on the territorial scope of South Africa’s  employment statutes. Accordingly, this article exposes the uncertainty  employees, who work outside their countries of residence, face when  trying to utilise the Labour Court as a channel of legal relief. Reasons  for this inconsistency lies in the approach the Labour Court has taken  in determining the territorial reach of South Africa’s employment  statutes. Where the Labour Court has utilised methods of statutory  interpretation and strictly imposed the presumption against extraterritoriality,  the court has established a practice that, in light of the  growing global nature of employment, deviates from the realities of the  de-territorialised flow of labour. Important in this article is thus the  endorsement of private international law principles and methods in  establishing jurisdiction and choice of law in the adjudication of a  cross-border employment dispute.