scholarly journals BARGAINING IN BAD FAITH IN SOUTH AFRICAN LABOUR LAW: AN ANTIDOTE?

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Fiona Leppan ◽  
Avinash Govindjee ◽  
Ben Cripps
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
South African ◽  
Good Faith ◽  
Bad Faith ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Legislation ◽  
The Many ◽  
Labour Organisation

While good-faith bargaining is recognized in many overseas jurisdictions and by the International Labour Organisation, such a duty has not been incorporated in South African labour legislation. Given the many recent examples of labour unrest in South Africa, it is time to consider whether there should be a duty to bargain in good faith when taking part in collective bargaining. Recognizing such a duty would arguably benefit both employers and employees and South Africa as a whole.

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 Selected Developments in South African Labour Legislation related to Persons with Disabilities

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Yvette Basson
Keyword(s):  
South Africa ◽  
South African ◽  
Older Persons ◽  
Labour Law ◽  
Employment Equity ◽  
Persons With Disabilities ◽  
Marginalised Groups ◽  
Practical Effect ◽  
The Subject ◽  
Labour Legislation

In South Africa marginalised groups have historically been afforded legislative protection in order to ensure that the rights of these groups are respected, protected, promoted and fulfilled. Examples of two such groups are older persons, whose rights are provided for in terms of the Older Persons Act 13 of 2006 and children, whose rights are provided for in terms of the Children's Act 38 of 2005. Persons with disabilities have, however, not yet been the subject of dedicated legislation outlining the content of the rights to which they are entitled. As a result of this lack of dedicated legislation, the rights of persons with disabilities are dealt with in a piecemeal fashion, often in disparate pieces of legislation.In addition to this focus on the rights of persons with disabilities, South African labour law has recently undergone extensive amendments. These amendments have led to the rights of persons with disabilities in the workplace being affected substantially. Since these amendments are as yet untested, little scrutiny of these provisions and the effect they may have on persons with disabilities has been undertaken. This article will thus discuss selected amendments of the labour legislation, and interrogate the practical effect these amendments may have on the rights of such persons. Of particular importance for the purposes of this article is the updating of an existing institution known as Sheltered Employment Factories, as well as the introduction of harsher penalties for employers who remain non-compliant with certain provisions of the Employment Equity Act 55 of 1998.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

Epistemic Ruptures in South African Standpoint Knowledge-Making: Academic Feminism and the #FeesMustFall Movement

2017 ◽  
Vol 4 (1) ◽  
Author(s):  
Desiree Lewis ◽  
Cheryl Margaret Hendricks
Keyword(s):  
South Africa ◽  
South African ◽  
Political Thought ◽  
Economic Restructuring ◽  
Student Protests ◽  
Political Processes ◽  
Academic Feminism ◽  
The Many ◽  
Radical Knowledge ◽  
Intellectual Activism

Alongside the many structural and political processes generated by the #FeesMustFall student protests between 2015 and 2016 were narratives and discourses about revitalising the transformation of universities throughout South Africa. It was the very notion of “transformation,” diluted by neo-liberal macro-economic restructuring from the late 1990s, that students jettisoned as they increasingly embraced the importance of “decolonisation.” By exploring some of the key debates and interventions driven by the #FeesMustFall movement, we consider how earlier trajectories of feminist knowledge-making resonate with these. The article also reflects on how aspects of intellectual activism within the student protests can deepen and push back the frontiers of contemporary South African academic feminism. In so doing, it explores how radical knowledge-making at, and about, universities, has contributed to radical political thought in South Africa.

scholarly journals The Concept of Labour in South African Law

Fundamina ◽  
2020 ◽  
pp. 42-90
Author(s):  
LN Maqutu
Keyword(s):  
South Africa ◽  
South African ◽  
Theoretical Perspective ◽  
Legal Reasoning ◽  
Labour Law ◽  
Post Colonial ◽  
Legal Provisions ◽  
Industrial Mining ◽  
Necessary Evil ◽  
Mobility Mining

The attitude of European invaders toward the African people they encountered during the colonial conquest of South Africa has been crucial in the formulation of law. This contribution undertakes a contrapuntal reading of historic laws pertinent to notions of labour and its regulation, in order to reveal the import of its orientation to the system devised. The discourse on Africans and the manner of their utilisation as a source of labour are assessed from the text of legal provisions of the emergent Cape Colony and the later period of industrial mining in the Zuid-Afrikaansche Republiek. From a post-colonial, theoretical perspective, the exploration expands the latitude of labour law to incorporate property, mobility, mining and other subsets of law. A recount of these early laws reveals that the forcible labouring of Africans has been vital in the development of colonial settlements and enterprise endeavours. The supposed worthwhile modernisation of South Africa has been largely accomplished through the cruelty imposed on Africans. Yet normalised accounts advance concrete separations, (white) leadership alongside legitimised African servitude. Fidelity to that paradigm of thought demands an either-or response to historical events (either it was good – a necessary evil – or it was bad), without making room for nuanced deliberation. It presumes a capacity to escape colonial manipulation when interrogating its misdeeds. However, the formation of that type of thought itself is flawed, and has failed to create the certitudes professed. Since the founding mythos upon which legal reasoning has been assembled has rested on the diminution of Africans, continued fidelity to the accumulated arrangements of labour and its control is disturbed by the appraisal in this contribution. The process avoids validating the simplistic legitimation of labour norms by the controlled insertion of Africans into colonised spaces – a narrow way of thinking that encourages the belief that solutions can be found in according Africans access to the spoils of conquest.

Soviet Freedom in South Africa

2020 ◽  
pp. 71-103
Author(s):  
David Johnson
Keyword(s):  
South Africa ◽  
South African ◽  
Literary Form ◽  
The Political ◽  
The Novel ◽  
William Morris ◽  
Olive Schreiner ◽  
Political Journalism ◽  
Political Freedoms ◽  
The Many

The reception in South Africa of the utopian tradition initiated by Marx, Engels and Lenin is analysed, focusing on the period from 1910 to 1930. The chapter examines the early South African dreams of freedom derived from or influenced by classical Marxism: the political journalism of Olive Schreiner from the 1880s to 1920; the novel 1960 (A Retrospect) by James and Margaret Scott Marshall; the Christian-influenced dreams of David Ivon Jones and Josiah Gumede; the 1928 Native Republic Thesis prescribed for South Africa by the Soviet Union’s Comintern; the literary visions of freedom of Edward Roux (inspired by Swinburne) and J. T. Bain (inspired by William Morris), as well as the many dreams expressed in literary form in the pages of The International and successor CPSA newspapers The South African Worker and Umsebenzi; J. M. Gibson’s ideal of an economic freedom that supersedes the political freedoms of liberalism; and the Stalinist telos driven by ‘the deepening economic crisis’ and culminating in the dictatorship of the proletariat. Roux’s political cartoons envisioning freedom and published in Umsebenzi are analysed.

(Un)Liberated and Contested Narratives

2019 ◽  
pp. 334-347
Author(s):  
Bongani C Ndhlovu
Keyword(s):  
South Africa ◽  
Public Sphere ◽  
South African ◽  
Social Cohesion ◽  
Nation Building ◽  
The State ◽  
The Public ◽  
The Public Sphere ◽  
The Many ◽  
Contested Narratives

This chapter analyses the influence of the state in shaping museum narratives, especially in a liberated society such as South Africa. It argues that while the notion of social cohesion and nation building is an ideal that many South African museums should strive for, the technocratisation of museum processes has to a degree led to a disregard of the public sphere as a space of open engagement. Secondly, the chapter also looks at the net-effect of museums professionals and boards in the development of their narrative. It argues that due to the nature of their expertise and interests, and the focus on their areas of specialisation, museums may hardly claim to be representative of the many voices they ought to represent. As such, the chapter explores contestations in museum spaces. It partly does so by exploring the notion “free-spokenness” and its limits in museum spaces. To amplify its argument, the chapter uses some exhibitions that generated critical engagements from Iziko Museums of South Africa.

Performing Theatre and Democracy

2021 ◽  
pp. 87-98
Author(s):  
Leila Henriques
Keyword(s):  
South Africa ◽  
South African ◽  
Research Methodology ◽  
Embodied Experience ◽  
Performance Ethnography ◽  
Theatre History ◽  
Political Narrative ◽  
The Many ◽  
The Individual ◽  
Individual Perspective

This collection of performances that is linked to this chapter was created as part of the MA exchange project between NTNU and DFL (Drama for Life). Students used performance ethnography as a method for generating performance material in answer to the challenge of building democracy through theatre. South Africa has a rich theatre history that has always engaged with the South African political narrative. Through developing an understanding of the many theatre-making processes that created this unique history, as well as through exploring other contemporary South African performances, students created and tracked their own research methodology so that they were able to hold up a mirror to the world around them. While each performance captured the individual perspective of the performer, they also engaged directly and indirectly with broader South African realities. The course consisted of four components, each shaped by the individual’s journey into their own research methodology. These were: generating material, interpreting the material, rehearsing the material and performing the material. This submission consists of a framing statement written by the lecturer as well as a collection of ten performances that include a short framing statement from each performer. Permission was obtained from all the students to showcase their work apart from one student who has submitted it under a pseudonym. Out of this exploration and through a practical laboratory, students created an embodied experience that addressed the notion of democracy. The value of the work was to gain a fresh embodied perspective of democracy in South Africa. It spoke to our unique South African theatre-making legacy, but also challenged and disrupted our understanding of what democracy is and how it might be performed.

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