FORUM CONTRIBUTION: Dismissals for operational requirements
Tapiwa Gandidze discusses dismissals for operational requirements in terms of the LRA with reference to the code of good practice on dismissals for operational requirements.The author also analyses the 2002 amendments to the LRA which allow workers either to strike about the reason for dismissals or refer such a dispute to the Labour Court. The author concludes by providing a detailed discussion of the legal requirements that employers need to comply with in order to ensure that dismissal is procedurally and substantively fair.Download full text.
FORUM CONTRIBUTION: The need for a human rights culture
In celebration of Human Rights Day, Minister of Finance Trevor Manuel delivered the 4th Dullah Omar Memorial Lecture on 20 March 2007. The lecture examines the notions of “continuity” and “change” in the human rights context in South Africa’s recent history.Dealing with specific challenges against the backdrop of our Constitution, he criticises problems such as corruption and concludes that more must be done to address them. Minister Manuel also discusses the importance of a culture of human rights as well as the challenges faced by South Africa in its struggle to build such a culture, and advances recommendations on how to achieve these objectives.Download full text.
FORUM CONTRIBUTION: Be careful what you wish for…?
Roger Ronnie draws a balance sheet of the position of the trade union movement today. While analysing trade unions as organisations dealing with more than simply wages and employment conditions, the author also considers their political limitations and assesses the gains and losses flowing from the 1995 LRA from a trade union perspective.In particular, the advent and growing entrenchment of “trade union legalism” within South Africa’s capitalist system is highlighted. The article concludes by making recommendations on how trade unions can try to avoid these pitfalls and promote the rights of workers more effectively.Download full text.
FORUM CONTRIBUTION: A summary of some recent cases of interest to the African continent
Sam Rugege discusses a few recent cases dealing with issues of African continental interest. These include the right of defence force members to join trade unions and to participate in protest action (South Africa); the right of the press to freedom of expression and the duty to inform the public on matters of public interest (Zimbabwe); the right of prisoners to vote in national elections (South Africa); the right of a citizen spouse to have her foreign spouse live permanently with her in her home country (Zimbabwe); the power of the National Assembly to suspend a member of the assembly and the right of a member to freedom of expression (South Africa); and succession rights in African kingdoms in the era of republican democracy (Uganda).Download full text.
FORUM CONTRIBUTION: African case law review
Sam Rugege's report on recent cases of interest to the African continent focuses on one of the recent Zimbabwean land invasion cases, highlighting the tension between a court system seeking to maintain the rule of law and an executive resistant to it. It also discusses a case relating to the customary law of succession in South Africa.
FORUM CONTRIBUTION: South African court rules on the state's obligation to prevent mother-to-child transmission of HIV
In Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) the Pretoria High Court found in favour of the Treatment Action Campaign and others and against the Minister of Health on the issue of mother-to-child HIV transmission. The steps taken by the state in this regard, it was held, were not in compliance with its duty to take reasonable measures to achieve the progressive realisation of the right to access to health care services.On appeal, the Constitutional Court in Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) similarly found that existing state policy fell short of the constitutional standard and ordered the state to ôdevise and implement within its available resources a comprehensive and co-ordinated programme to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV. Geoff Budlender, who acted as attorney for the applicants in the High Court and subsequently in the Constitutional Court, provides a brief comment on the context and controversies surrounding the justiciability of socio-economic rights.Download full text.
FORUM CONTRIBUTION: Get rights right in the interests of security of tenure
Review of Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by Aninka Claassens & Ben Cousins; xv and pp 392 with accompanying DVD. Legal Resources Centre & UCT Press, Cape Town, 2008 Ann Pope gives a detailed overview of a book on a topic that has assumed critical importance in South Africa and, at the same time, analyses and comments on difficulties and dilemmas that have been encountered in securing indigenous land rights.The book was collated following the enactment of the Communal Land Rights Act 11 of 2004 and the Traditional Leadership and Governance Framework Act 41 of 2003, in preparation for a challenge to the constitutionality of the former Act by alleging that it “undermines the rights of rural people to make them less secure than before”. Judgment in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006)  ZAGPPHC 127 (30 October 2009) has since been delivered, its findings being mostly in favour of the applicants. An analysis of the judgment is followed by further reflection on a number of issues. The discussion shows that, while the applicants in Tongoane can rightly claim victory for succeeding in having several provisions of the CLRA declared unconstitutional, important questions remain unanswered. The author suggests that the implications of such omissions will need careful and thoughtful treatment by the Constitutional Court during the confirmation hearing at the beginning of March 2010. At the time of publication the judgment in this hearing was not yet available.Download full text.
FORUM CONTRIBUTION: Ten years of the CCMA – An assessment for labour
Ronald Bernikow examines certain key areas of the CCMA’s operations and the challenges it faces within the broader context of our labour laws. The article deals with the current state of CCMA service delivery as well as the debate over what has been termed the “over-proceduralisation” of dispute resolution at the CCMA.It discusses areas where the CCMA can, from the perspective of labour, be said to be performing well, as well as pointing to various shortcomings or gaps in the statutory dispute resolution framework. It concludes that the CCMA is a legitimate and important institution that has promoted a common industrial citizenship and provided a platform for confronting future challenges.Download full text.
FORUM CONTRIBUTION: Effects on the employment relationship of the insolvency of the employer: A worker perspective
Peter Carolus, Thierry Galani Tiemeni and Kurt Ziervogel, look critically at the Insolvency Act prior to the amendments of 2002 and the limited protection it gave workers on the insolvency of the employer. The effect of the Act was that workers’ contracts of employment were automatically terminated by their employer’s insolvency, leaving them with a limited preferent claim against the employer’s insolvent estate.The authors discuss how the 2002 amendments to the Insolvency Act and the LRA addressed these problems by providing for the suspension rather than termination of employment contracts in the event that the business can be saved or sold as a going concern. They also discuss the right of workers as creditors to appoint their own liquidator to supervise the liquidation process and conclude with a detailed examination of challenges faced by trade unions on issues arising from the insolvency of employers.Download full text.