scholarly journals Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

2021 ◽  
Vol 24 ◽  
pp. 1-20
Author(s):  
Kamalesh Newaj
Keyword(s):  
South Africa ◽  
Case Note ◽  
The Other ◽  
Constitutional Court ◽  
National Union ◽  
Test Set ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
Chemical Workers ◽  
The One

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.

scholarly journals INTRODUCING DECONSTRUCTIVE INTERSECTIONALITY: THE GENERAL JURISPRUDENTIAL RAGE AGAINST RAINBOW THEORY

2015 ◽  
Author(s):  
Tamryn Gorman
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Constitutional Court ◽  
Court Cases ◽  
Substantive Equality ◽  
Constant Tension ◽  
Formal Equality ◽  
The One ◽  
Constitutional Adjudication

Despite South Africa’s post-modern constitutional dispensation which, at first glance, seems to celebrate and entrench substantive equality — various judgements have been passed by the Constitutional Court where the Constitution was interpreted through a formal equalitarian lens. On the one hand, substantive equality recognises and celebrates our diversity and differences whereas formal equality, on the other hand, obsesses with the idea of sameness. This constant tension between substantive and formal equality is aptly portrayed by the term ‘rainbow jurisprudence’. This term was coined by Alfred Cockrell to explain a quasi-theory depicted by the newly born South African constitutional adjudication which was lacking in substantive reasoning (which I equate to substantive equality) and the absence of a rigorous jurisprudence. He goes so far as to assimilate the finding of genuine substantive reasoning within these judgements to the possibility of touching a rainbow — a mythical task which, although alluring, seems impossible. Thus, I have identified the problem that South Africa is still submerged in rainbow jurisprudence. This can be seen through various court cases that will be discussed below, ranging from cases that were clearly decided from a formal equalitarian perspective to those which depict a wolf in sheep’s clothing seemingly substantive judgements disguising the formal equality lurking beneath.

scholarly journals Dynamics of Continuity and Change: Shifts in Labour Relations in the Potosí Mines (1680–1812)

2016 ◽  
Vol 61 (S24) ◽  
pp. 93-114 ◽  
Author(s):  
Rossana Barragán Romano
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Seventeenth Century ◽  
Sixteenth Century ◽  
The Other ◽  
Economic Sectors ◽  
Labour Relations ◽  
Continuity And Change ◽  
The One

AbstractLabour relations in the silver mines of Potosí are almost synonymous with the mita, a system of unfree work that lasted from the end of the sixteenth century until the beginning of the nineteenth century. However, behind this continuity there were important changes, but also other forms of work, both free and self-employed. The analysis here is focused on how the “polity” contributed to shape labour relations, especially from the end of the seventeenth century and throughout the eighteenth century. This article scrutinizes the labour policies of the Spanish monarchy on the one hand, which favoured certain economic sectors and regions to ensure revenue, and on the other the initiatives both of mine entrepreneurs and workers – unfree, free, and self-employed – who all contributed to changing the system of labour.

South African Economy: No Easy Life Ahead

2015 ◽  
pp. 104-116
Author(s):  
P. Mozias
Keyword(s):  
Economic Growth ◽  
South Africa ◽  
Interest Rates ◽  
South African ◽  
Trade Unions ◽  
Current Account Deficit ◽  
National Development ◽  
Capital Inflows ◽  
The Other ◽  
The One

South African rand depreciated in 2013–2014 under the influence of a number of factors. Internationally, its weakness was associated with the capital outflow from all emerging markets as a result of QE’s tapering in the US. Domestically, rand plummeted because of the deterioration of the macroeconomic stance of South Africa itself: economic growth stalled and current account deficit widened again. Consumer spending was restrained with the high household indebtedness, investment climate worsened with the wave of bloody strikes, and net export was still prone to J-curve effect despite the degree of the devaluation happened. But, in its turn, those problems are a mere reflection of the deep institutional misbalances inherent to the very model of the national economy. Saving rate is too low in South Africa. This leads not only to an insufficient investment, but also to trade deficits and overdependence on speculative capital inflows. Extremely high unemployment means that the country’s economic potential is substantially underutilized. Joblessness is generated, first and foremost, by the dualistic structure of the national entrepreneurship. Basic wages are being formed by way of a bargaining between big public and semi state companies, on the one hand, and trade unions associated with the ruling party, on the other. Such a system is biased towards protection of vested interests of those who earn money in capital-intensive industries. At the same time, these rates of wages are prohibitively high for a small business; so far private companies tend to avoid job creation. A new impulse to economic development is likely to emerge only through the government’s efforts to mitigate disproportions and to pursue an active industrial policy. National Development Plan adopted in 2012 is a practical step in that direction. But the growth of public investment is constrained by a necessity of fiscal austerity; as a result, the budget deficit remained too large in recent years. South African Reserve Bank will have to choose between a stimulation of economic growth with low interest rates, on the one hand, and a support of rand by tightening of monetary policy, on the other. This dilemma will greatly influence prices of securities and yields at South African financial markets.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

From Esther to Kwezi

2014 ◽  
Vol 8 (4) ◽  
pp. 471-487 ◽  
Author(s):  
L. Juliana Claassens ◽  
Amanda Gouws
Keyword(s):  
South Africa ◽  
Sexual Violence ◽  
Political Science ◽  
Old Testament ◽  
The Other ◽  
The Bible ◽  
Patriarchal Society ◽  
Collaborative Engagement ◽  
Multiple Levels ◽  
The One

This article seeks to reflect on the issue of sexual violence in the context of the twenty year anniversary of democracy in South Africa bringing together views from the authors’ respective disciplines of Gender and the Bible on the one hand and Political Science on the other. We will employ the Old Testament Book of Esther, which offers a remarkable glimpse into the way a patriarchal society is responsible for multiple levels of victimization, in order to take a closer look at our own country’s serious problem of sexual violence. With this collaborative engagement the authors contribute to the conversation on understanding and resisting the scourge of sexual violence in South Africa that has rendered a large proportion of its citizens voiceless.

scholarly journals I am/am I an African? A relational reading of Diaspora and Identity in South African Fiction by J.U. Jacobs

Literator ◽  
2017 ◽  
Vol 38 (1) ◽  
Author(s):  
Miki Flockemann
Keyword(s):  
South Africa ◽  
South African ◽  
Performing Arts ◽  
The Other ◽  
Important Addition ◽  
Recent Trends ◽  
The One ◽  
New Generation ◽  
Globalising World ◽  
Comprehensive Study

The publication of Diaspora and Identity in South African Fiction (2016) by J.U. Jacobs is a timely intervention, in that it is the first comprehensive study of South African fiction to sustain the argument that South African writing is always already diasporic. Although Jacobs’ diasporic framework undoubtedly serves as an important addition to the recent trends identified by literary scholars, his focus on 12 well-established writers (including Coetzee, Wicomb, Mda, Gordimer and Ndebele), highlights some of the gaps that need to be filled in a study of this kind. For instance, what about the younger generation of writers, including those from elsewhere in Africa who are writing about living in South Africa? How do they deal with what has been termed the new diaspora, with debates around Afropolitanism and the experiences of internal, inter-continental and trans-continental migrancy in an increasingly globalising world? Despite these shortcomings, Jacobs’ premise about the inevitably diasporic identifications that are narrativised in the 20 novels analysed here can provide a useful foundation for further scholarship on how the diasporic condition informs and is mediated in other texts. These, as I will show, range from works by a new generation of emerging writers on the one hand to the performing arts on the other hand.

scholarly journals THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Themba Maseko
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Note ◽  
Constitutional Court ◽  
National Assembly ◽  
High Court ◽  
The Rule Of Law ◽  
The Republic ◽  
The One ◽  
Do So

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.

scholarly journals CASE NOTE: Illegal sales of alcohol and asset forfeiture

2016 ◽  
Author(s):  
Karabo Ngidi
Keyword(s):  
South Africa ◽  
Organised Crime ◽  
Case Note ◽  
Constitutional Court ◽  
High Court ◽  
Legal Limit ◽  
Asset Forfeiture ◽  
National Director ◽  
Business As Usual ◽  
The Impact

The Constitutional Court recently confirmed an order for the forfeiture of a house from which an unlawful shebeen had been run for years (Van der Burg and Another v National Director of Public Prosecutions).In deciding whether to confirm the order of the full bench of  the High Court, Justice van der Westhuizen, writing for a unanimous court, addressed the following questions: whether the house was an instrumentality of an offence; whether the illegal sale of alcohol is an organised crime; the proportionality of the crime to the forfeiture under the Prevention of Organised Crime Act 121 of 1998 (the POCA); as well as the impact of the forfeiture on the rights of the children that lived in the house. This judgment comes at a time where issues such as the proposal for the reduction of the legal limit of alcohol for drivers to 0%2 are topical, and seems to point to a tougher stance towards the sale and consumption of alcohol in South Africa. The judgment may therefore be seen as a warning that the illegal sale of alcohol and running of a shebeen will no longer be seen as business as usual in cases where the seller does not heed the call to desist such business.

scholarly journals The evasion of Section 187(1)(c) of the Labour Relations Act: National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 642-650
Author(s):  
Rasheed Keith-Bandath
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
The Supreme Court ◽  
First Time ◽  
Court Of Appeal ◽  
Conditions Of Employment

Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.

scholarly journals Investigating the Need to Reintroduce a Ballot Requirement for a Protected Strike in South Africa

Obiter ◽  
2019 ◽  
Vol 40 (2) ◽  
Author(s):  
Mlungisi Tenza
Keyword(s):  
South Africa ◽  
The Other ◽  
Bill Of Rights ◽  
Labour Relations ◽  
Other Hand ◽  
Long Run ◽  
Meaningful Role ◽  
Counter Argument

The issue of violent and protracted strikes has been a source of debate on many labour platforms in South Africa. Unions believe that if a ballot is introduced as one of the requirements for a protected strike in South Africa, it will be abused by employers and manipulated as was the case under the old Labour Relations Act. A counter- argument is that no one can take away a right in the Bill of Rights unless the prescribed procedure in the Constitution is followed. A right in the Bill of Rights can also not be limited unless the limitation is in terms of section 36 of the Constitution. Of particular importance to this issue is not the number of strikes in South Africa but their nature (which has been violent) and their duration (which has been unreasonably long). The violent nature of strikes is a major concern for employers, society and non-striking employees. Violent and lengthy strikes are dangerous to both employers and employees. The employer suffers loss of profit and loss of clients with the possibility of reducing its workforce or closing its business. Employees, on the other hand, face retrenchments if the business is not making a profit. The article argues that the reintroduction of a ballot requirement will play a meaningful role in reducing the number of strikes and their duration. Balloting employees prior and during the course of a strike will help test whether employees have the appetite for the strike. The article further argues that if long strikes can be reduced through ballots, dismissal on the basis of operational requirements could be avoided. In the long run, poverty arising from high levels of unemployment could be avoided.

Sign in / Sign up

Export Citation Format

Share Document