FORUM CONTRIBUTION: The final curtain call for the ‘Minimum Sentences Act’
Ronnie Bedu deals with the judgment of the Constitutional Court in Centre for Child Law v Minister of Justice and Constitutional Development and Others on the constitutionality of minimum sentences in respect of young offenders under 18 years of age.
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: Women’s Rights in Human Rights Systems: Past, Present and Future
In the 2009 Dullah Omar Memorial Lecture, United Nations High Commissioner for Human Rights Navanethem Pillay contextualises many of the issues facing women that were raised in earlier articles.
FORUM CONTRIBUTION: Comment on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment
Drawing on their experience in drafting an HIV/AIDS workplace policy for the University of the Western Cape, Tania Vergnani and Nikki Schaay reflect on the Code of Good Practice: Key Aspects of HIV/AIDS and Employment in terms of its ability to assist in defining and refining HIV/AIDS policies. They conclude that the Code takes a limited view of workplace responsibility and advocate that employers should play a greater, more pro-active role in the prevention of the spread of the disease and of discrimination, as well as in providing treatment for those living with HIV/AIDS.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) [2009] 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: 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: Commentary on communications decided by the African Commission on Human and Peoples’ Rights in 2004
Waruguru Kaguongo reports on issues arising from decisions handed down by the African Commission on Human and Peoples’ Rights in 2004. A total of 12 communications were considered in that year, with seven communications being decided on the merits. .The article is divided into two main sections: issues implicit in the determination of admissibility, and those arising from consideration of the merits. On admissibility, the most often considered criterion was the requirement to exhaust local remedies. In determining compliance with this criterion, it is argued, the Commission displayed consistency with its previous jurisprudence. The exhaustion of local remedies, however, tended to take precedence over the other criteria and, it is suggested, the Commission failed to take the opportunity to further elaborate on the application of other criteria. In the relation to the merits, the author argues that the communications raised issue relating to evidence and the lack of consistency in how it affects decisions; the limitation of rights; the role of the Commission versus national jurisdictions; fair trial guarantees; interpretation of international treaties and the administrative capacity of the Commission and its effect on decisionsDownload full text.
FORUM CONTRIBUTION: Labor Law for the 21 st century: Stalled reform in the United States
This document by Karl Klare, an eminent labour law scholar and one of the originators of the critical legal studies tradition in the USA, is a slightly shortened version of his submission to the Dunlop Commission, appointed by President Clinton to investigate the future of management-labour relations in the USA. Critically reviewing the development of the US system of collective bargaining, Klare elaborates a more general analysis of the role of labour law at the close of the 20th century.From a South African perspective, it highlights the advances in labour rights embodied in the LRA, but also helps to identify areas where further innovation may be called for. It offers a challenging framework for evaluating the debate surrounding the LRA and other labour statutes in this country.Download full text.
FORUM CONTRIBUTION: Not only the business of the state, but also a business of all: State reporting in South African and popular participation - p 514
The author argues that, when one turns to the subject of South Africa’s state reporting in relation to international human rights law, three issues consistently come to light: delays in the submission of reports; problems with their content; and lack of consultation in their development.To address these issues the author supports the establishment of a governmental-civil society forum to "provide the basis both for constructive dialogue and greater coordination in how civil society engages with the international and regional human rights system."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.