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: A New Constitution and a Bill of Rights
Deputy Chief Justice Pius Langa argues that, while the advent of the constitutional era is very significant, the Constitution is only a guideline for nurturing the life of the nation. With rights go responsibilities.Being able to exercise our rights also requires us to respect the rights of others. The courts, legislature and executive can create the space for citizens to engage with the project of building a new society, but it is up to the citizens to work with others to create the kind of society in which all the people are able to maximise their personal potential and fully enjoy their rightsDownload full text.
FORUM CONTRIBUTION: The plight of domestic workers: The elusiveness of access to adequate housing
South Africa’s transformative Constitution calls for a holistic approach to realising the right to human dignity. To marginalised groups, such as domestic workers, this right is not confined to achieving better wages and working conditions; it touches every aspect of their lives. Central to this endeavour is the quest for adequate housing. This article discusses the experience of a housing cooperative consisting predominantly of domestic workers in campaigning for adequate housing, especially at local government level, as part of the struggle to achieve a secure and dignified existence. While identifying formidable obstacles, it also shows the interconnectedness of the various challenges and the need for a integrated approach in addressing them.Download full text.
FORUM CONTRIBUTION: The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)
This article, co-authored by LLB student Lesega Mnguni and Justin Muller as part of our ALAD programme (see Who We Are) deals with the principle of legality as enunciated in Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC). In this matter an accused person was charged with rape after committing a grossly indecent sexual assault on a nine-year-old girl.Although the act in question did not fall within the common law definition of rape, the Regional Court felt justified in developing the common law definition in terms of section 39 of the Constitution to include the act in question and duly convicted the accused. The High Court upheld this decision. The article examines the reasoning of the Constitutional Court in determining the meaning of the principle of legality and applying the right to non-retrospective punishment, as entrenched in section 35(3)(l) and (n) of the Constitution, under extremely sensitive and challenging circumstances.Download full text.
FORUM CONTRIBUTION: The growing informalisation of work: Challenges for labour
Rudi Dicks discusses the South African phenomenon of “informalisation” of the workforce, which is characterised by workers shifting from permanent employment to casualised and fixed-term contracts, outsourcing and employment through labour brokers.These forms of employment are accompanied by, lack of job security, undermining of basic conditions of employment, erosion of workplace rights and decreasing access to skills and equity at work. The author considers the effects of the process and concludes by suggesting measures to provide legislative protection to vulnerable workers, including the establishment of a tripartite statutory body to regulate labour brokers; the development of a code of good practice for workers engaged in atypical employment contracts and improving monitoring and enforcement mechanisms through tougher penalties.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.
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: Enforcement difficulties in the public and private sectors
John Brown examines the enforcement of CCMA arbitration awards in terms of the LRA, as well as the enforcement of private arbitration awards in terms of the Arbitration Act of 1965. The author analyses relevant case law and highlights the real practical difficulties facing worker litigants in enforcing arbitration awards in their favour. ”.The final section of the article deals with the enforcement of collective agreements and settlement agreements. The essential role of bargaining councils in monitoring and enforcing collective agreements is also highlighted. The article concludes that “[t]he challenge facing the labour movement is to equip its organisers with the legal knowledge and drafting skills to negotiate and draft agreements which best promote the interests of workers and avoid legal pitfalls when trying to enforce agreements which are challenged by an employerDownload full text.