scholarly journals DEFINING THE RIGHT TO STRIKE: A COMPARATIVE ANALYSIS OF INTERNATIONAL LABOUR ORGANIZATION STANDARDS AND SOUTH AFRICAN LAW

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Mohamed Alli Chicktay
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
The Other ◽  
International Labour Organization ◽  
International Labour Organisation ◽  
Human Right ◽  
South African Constitution ◽  
The Right ◽  
Do So

The right to strike is a fundamental human right recognized in international law and the South African Constitution. If “strike” is defined too narrowly it would deny protection that would normally be given to employees who would otherwise be participating in a strike. On the other hand if “strike” were defined too broadly it would categorize as strike action that would not normally be regarded as a strike: thus subjecting these employees to serious consequences that result from participating in an unprotected strike. These may include dismissals, interdicts and claims for compensation. South Africa has a constitutional obligation to comply with international law when interpreting human rights. The purpose of this article is to determine whether South African law defines “strike” in compliance with International Labour Organisation standards and to make suggestions for amendments to the lawwhere it fails to do so.

The Human Right to Water in South Africa and the Mazibuko Decisions

2011 ◽  
Vol 51 (3-4) ◽  
pp. 521-540 ◽  
Author(s):  
Tracy Humby ◽  
Maryse Grandbois
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
The South ◽  
Human Right ◽  
Lower Courts ◽  
Access To Water ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

The right of access to sufficient water in the South African Constitution has for long been regarded as progressive in a global context where the human right to water is still a subject of contention. In its recent decision handed down in the Mazibuko matter, the South African Constitutional Court interpreted the right of access to sufficient water for the first time and clarified the nature of the State’s obligations which flow from this right. It also commented upon the role of the courts in adjudicating the human right to water. This article describes the passage of the Mazibuko matter and the manner in which the lower courts interpreted the right of access to “sufficient water” as well as outlining the Constitutional Court’s decision in the context of access to water services provision in South Africa.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

scholarly journals The Constitutional Court’s contribution to sustainable development in South Africa

2017 ◽  
Vol 6 (2) ◽  
pp. 80
Author(s):  
Irma J Kroeze
Keyword(s):  
South Africa ◽  
South African ◽  
Social Life ◽  
The Other ◽  
Political Freedom ◽  
Personal Freedom ◽  
Government Power ◽  
Self Rule ◽  
South African Constitution ◽  
The Right

 Freedom is central to most constitutions.  In the constitutional context, freedom usually means both personal freedom and political freedom.  Personal freedom can be described as the right to decide for oneself the terms of one's life, both individually and communally.  It is what Frank Michelman calls self-rule: it "demands the people's determination for themselves of the norms that are to govern their social life".3  Political freedom, on the other hand, implies the protection against arbitrary government power.  This is what Michelman calls law-rule.  In most constitutional dispensations both these types of freedom are implicated and the South African constitution is no exception.4  But, it is ironic that in most constitutional democracies these two types of freedom are also frequently in conflict with one another.  In fact, it is not far-fetched to suggest that they are conceptually contradictory.

scholarly journals The Human Right to Information and Transparency

2021 ◽  
Author(s):  
Jonathan Klaaren
Keyword(s):  
International Law ◽  
South African ◽  
Final Section ◽  
The South ◽  
Human Right ◽  
Current State ◽  
African Perspective ◽  
Right To Information ◽  
The Right ◽  
Conceptual Foundations

The argument for the recognition of the right to information in international law has continued to strengthen since the South African Constitutional Court’s Certification decision. This paper examines the human right to information in international law and makes the argument that this human right is a significant vehicle for promoting transparency. In section 2, it makes some observations concerning the conceptual foundations of the right to information and the right’s relationship to the broader concept of transparency. Section 3 notes the current state of the human right to information in international law doing so from an African perspective. The final section presents a set of questions for further consideration (noting some linkages with South African post- apartheid jurisprudence) as well as some concluding observations, organized in conceptual terms based on the right of information.

Part 1 The Cold War Era (1945–89), 31 South African Incursions into Lesotho—1982

2018 ◽  
Author(s):  
Reinold Theresa
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Progressive Development ◽  
Self Defense ◽  
Un Security Council ◽  
Un General Assembly ◽  
Legal Arguments ◽  
The Right ◽  
The Cold War

This chapter discusses the legality of South Africa’s incursion in Lesotho in 1982. After describing the facts of the case, it presents the legal arguments of the main protagonists – South Africa and Lesotho - and canvasses the positions taken by the UN General Assembly, the UN Security Council, as well as other important diplomatic players. It then assesses the legality of the intervention and discusses its impact on the progressive development of international law. It concludes that the incursion violated Article 2(4) of the UN Charter and that, in light of the overwhelmingly negative international reaction, the raid could not trigger an expanded reading of the right to self-defense, as was claimed by South Africa.

The Interaction between Section 233 of the South African Constitution and the Commentaries to the OECD Model Tax Convention on Income and on Capital

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Enelia Jansen van Rensburg
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
The South ◽  
Double Taxation ◽  
The Republic ◽  
South African Constitution

The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law. The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.

THE RIGHT TO REMAIN SILENT: A ONE­ EYED APPROACH TO TRUTH-SEEKING?

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Mabona Thomas Mokoena
Keyword(s):  
South Africa ◽  
South African ◽  
Crime Control ◽  
The United States ◽  
Constitutional Court ◽  
Human Right ◽  
Criminal Process ◽  
The Right ◽  
Source Of Information ◽  
Constitutional Analysis

The right to remain silent is one of the most important symbols of a fair trial in the accusatorial legal systems, to which South Africa also belongs. In certain countries, such as the United States and South Africa, this right is constitutionally entrenched as a fundamental human right, which virtually guarantees that adverse inferences cannot be drawn against an accused who fails to disclose pre-trial information. The accused is thereby excluded as a critical source of information during this stage of the proceedings. In essence, this means that the criminal process is compelled to close one eye to a valuable and crucial source of information. other jurisdictions within the accusatorial family, notably England and  Scotland,  have  introduced legislation aimed  at crime  control which essentially compels the accused to break his or her silence during the pre-trial stage of the criminal process. The very essence of the right to remain silent as a fundamental human right is proving problematic to the South African Constitutional Court when considering it within the context of the  limitation clause. It is argued, in this article, that the solution lies, first, in a substantive constitutional analysis of rights and,  secondly, in interpreting the right as a functional evidentiary principle with the aim of securing procedural fairness.

The Right to Strike and Pre-Strike Ballot Requirements in International Law

2020 ◽  
pp. 41-59
Author(s):  
Breen Creighton ◽  
Catrina Denvir ◽  
Richard Johnstone ◽  
Shae McCrystal ◽  
Alice Orchiston
Keyword(s):  
International Law ◽  
Standard Setting ◽  
Freedom Of Association ◽  
International Labour Organisation ◽  
Human Right ◽  
International Recognition ◽  
Nation States ◽  
Social Interests ◽  
The Right ◽  
Labour Organisation

The book is underpinned by the assumption that the right to strike to promote or to protect the individual’s economic and social interests is a universally recognized human right, either standing on its own, or as part of the principle of freedom of association. This is reflected in the fact that the right to strike is, directly or indirectly, afforded protection by major international standard-setting instruments, and in the constitutions of many nation states. This chapter outlines the international recognition of the right to strike, with particular reference to the jurisprudence of the supervisory bodies of the International Labour Organisation. This includes consideration of the extent to which access to the right to strike can properly be conditioned by pre-requisites such as pre-strike ballot requirements.

Power to the People? Right of Access to Electricity in South Africa

Politeia ◽  
2019 ◽  
Vol 38 (2) ◽  
Author(s):  
Khaled Qasaymeh ◽  
Jo-Ansie Karina Van Wyk
Keyword(s):  
South Africa ◽  
Public Policy ◽  
Economic Development ◽  
South African ◽  
Special Focus ◽  
The South ◽  
Human Right ◽  
Socio Economic Development ◽  
The Right ◽  
Right Of Access

The provision and distribution of and access to electricity are not only technical and economic matters. Access to electricity is a highly political and ideological issue and has consequences for public policy and human development. Since 2000, South Africa has experienced power outages (euphemistically called load-shedding) and the country has not kept up with increased electricity and socio-economic demands. Globally, access to electricity is increasingly regarded as a basic human right and an important contributor to socio-economic development. However, the position towards and the practice regarding access to electricity by the post-apartheid South African government are contradictory. Although both the South African Bill of Rights and the Constitution of the Republic of South Africa of 1996 refer to fundamental human rights, the matter of access to electricity as a human right is not clearly spelled out in these documents. This article outlines international and African norms in respect of the right of access to electricity in the context of the international socio-economic development debate. It proceeds to examine the South African context, policies, legislation and constitutional court judgments in respect of socio-economic development with a special focus on access to electricity—a matter which is closely linked to political, public policy and development issues such as housing and the environment in South Africa. The article calls for the right of access to electricity to be declared a basic human right and to be legislated as such in the South African legal regime.

The Right to Science

2021 ◽  
Keyword(s):  
Open Access ◽  
International Law ◽  
Life Extension ◽  
Science And Society ◽  
Dual Use ◽  
Human Right ◽  
Ideal Tool ◽  
The Right ◽  
Do So

That everyone has a human right to enjoy the benefits of the progress of science and its applications comes as a surprise to many. Nevertheless, this right is pertinent to numerous issues at the intersection of science and society: open access; 'dual use' science; access to ownership and dissemination of data, knowledge, methods and the affordances and applications thereof; as well as the role of international co-operation, human dignity and other human rights in relation to science and its products. As we advance towards superintelligence, quantum computing, drone swarms, and life-extension technology, serious policy decisions will be made at the national and international levels. The human right to science provides an ideal tool to do so, backed up as it is by international law, political heft, and normative weight. This book is the first sustained attempt at turning this wonder of foresight into an actionable and justiciable right. This title is also available as Open Access on Cambridge Core.

Sign in / Sign up

Export Citation Format

Share Document