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.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights

2020 ◽  
Vol 23 ◽  
pp. 1-26
Author(s):  
Felix Dube
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
International Human Rights ◽  
South Africans ◽  
The People ◽  
Human Rights Movement ◽  
International Human

The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement.

scholarly journals On the record with Judge Jody Kollapen

2019 ◽  
pp. 53-56
Author(s):  
Nontsasa Nako
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Constitutional Court ◽  
Industrial Complex ◽  
The South ◽  
State Repression ◽  
Crime And Punishment ◽  
Democratic State ◽  
The Impact

With the revelations by Bosasa officials at the State Capture Enquiry, held in early 2019, laying bare the corrupt links between prisons, detention centres and border control, and high ranking political and government officials, the time is ripe to excavate the capitalist interests that fuel incarceration in this country. How did the prison industrial complex overtake the lofty principles that ushered in the South African democratic era? Judge Jody Kollapen is well-placed to speak to about the evolution of the South African prison from a colonial institute that served to criminalise and dominate 'natives', to its utility as instrument of state repression under apartheid, to its present manifestation in the democratic era. He has laboured at the coalface of apartheid crime and punishment through his work as an attorney in the Delmas Treason Trial, and  for the Sharpeville Six, and also worked as a member of Lawyers for Human Rights, where he coordinated the 'Release Political Prisoners' programme, Importantly, Justice Kollapen had a ringside seat at the theatre of our transition from apartheid to democracy as he was part of the selection panel that chose the commissioners for the Truth and Reconciliation Commission (TRC). Many questions can be asked of the South African TRC including whether it was the best mechanism to deal with the past and whether it achieved reconciliation. What concerns us here is its impact on crime and punishment in the democratic era. If our transition was premised on restorative justice, then shouldn’t that be the guiding principle for the emerging democratic state?  In line with this special edition’s focus on the impact of incarceration on the marginalized and vulnerable, Judge Kollapen shares some insights on how the prison has fared in democratic South Africa, and how imprisonment affects communities across the country. As an Acting Judge in the Constitutional Court, a practitioner with a long history of civic engagement, and someone who has thought and written about criminalization, human rights and prisons, Judge Kollapen helps us to think about what decolonization entails for prisons in South Africa.

scholarly journals The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa

2017 ◽  
Vol 9 (2) ◽  
pp. 176
Author(s):  
D Horsten
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Good Governance ◽  
Social Rights ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
The People

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person.  One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable.  Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble.  In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports.  The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

Asad on the Secular

2013 ◽  
Vol 30 (1) ◽  
pp. 1-21
Author(s):  
Auwais Rafudeen
Keyword(s):  
Human Rights ◽  
South African ◽  
The State ◽  
South African Context ◽  
Bill Of Rights ◽  
The South ◽  
Legal Nature ◽  
African Context

This paper examines a South African debate on legislating Muslim marriages in the light of anthropologist Talal Asad’s critique developed in his Formations of the Secular (2003). It probes aspects of the debate under four Asadian themes: (1) the historicity of the secular, secularism, and secularization; (2) the place of power and the new articulations of discourses it creates; (3) the state as the arm of that power; and (4) the interconnections (or dislocations) among law, ethics, and the organic environment (habitus). I argue that Asad illumines the debate in the following ways: (1) by providing a deeper historical and philosophical appreciation of its terms of reference, given that the proposed legislation will be subject to South Africa’s secular Bill of Rights and constitution; (2) by requiring us to examine and interrogate the genealogies of such particular hegemonic discourses as human rights, which some participants appear to present as ahistorical and privileged; and (3) by showing, through the concept of habitus, why this debate needs to go beyond its present piecemeal legal nature and develop an appreciation of the organic linkages among the Shari‘ah, morality, community, and self. Yet inevitable nuances are produced when applying Asad’s ideas to the South African context.

Extending Death Benefits to Cohabitants under Section 37C of the South African Pension Funds Act: Hlathi v University of Fort Hare Retirement Fund

2012 ◽  
Vol 56 (2) ◽  
pp. 296-306
Author(s):  
Ntombizozuko Dyani
Keyword(s):  
South Africa ◽  
South African ◽  
Legal Protection ◽  
Pension Funds ◽  
Bill Of Rights ◽  
The South ◽  
Retirement Fund ◽  
University Of Fort Hare

AbstractCohabitation is left largely unregulated in South Africa, which means that many cohabitants are left destitute or financially worse off when their cohabiting partners die. The Pension Funds Act 24 of 1956, in particular section 37C, is one of the few pieces of legislation that afford legal protection to cohabitants who are left financially worse off due to the death of their partners. However, three previous pension funds adjudicators gave different views as to how to interpret this provision. This note seeks to compare three decisions by three different adjudicators and concludes that the latest decision in Hlathi is the most preferred, because it interprets section 37C progressively, taking into account the spirit, purport and objects of the Bill of Rights.

scholarly journals Socio-economic rights and women in South Africa: nothing but a handful of feathers?

2011 ◽  
Vol 7 (1) ◽  
Author(s):  
M K Ingle
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Political Science ◽  
South African ◽  
Gender Studies ◽  
The State ◽  
Development Studies ◽  
Bill Of Rights ◽  
Economic Rights ◽  
South African Constitution

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

scholarly journals The comparability of the constructs of the 16PF in the South African context

1999 ◽  
Vol 25 (1) ◽  
Author(s):  
F. Abrahams ◽  
K. F. Mauer
Keyword(s):  
South Africa ◽  
South African ◽  
Statistical Methods ◽  
Field Work ◽  
Descriptive Statistics ◽  
South African Context ◽  
Considerable Influence ◽  
The South ◽  
African Context ◽  
Labour Legislation

The primary aims of the study were to determine whether the scores of the 16PF (SA92) are comparable in a crosscultural setting in South Africa, and also to investigate the influence of the gender of the research participants on the scores of the 16PF (SA92). The sample consisted of 983 students who were enrolled at different universities at the time of the field work. The statistical methods involved the application of descriptive statistics as well as methods to determine the comparability of the constructs. The results showed that although race exercised a considerable influence on the findings, this was not necessarily the case as far as gender was concerned. The presence of problems relating to the construct comparability of the test were also identified, as significant differences in means were found between the different race groups. Some of the implications of persisting with the use of the 16PF (SA92) in the South African context are outlined against the background of recently promulgated labour legislation. Opsomming Die primere doelstellings met die onderhawige studie was om die toepaslikheid van die 16PF (SA92) in Suid Afrikaanse konteks met sy diversiteit van kultuurgroepe te evalueer. Die invloed van die geslag van die navorsingsdeelnembers op die resultate is ook nagevors. Die deelnemergroep het bestaan uit 983 studente wat ten tye van die veldwerk aan verskillende universiteite gestudeer het. Benewens normale beskrywende statistiek, is daar ook gebruik gemaak van metodes om konstrukvergelykbaarheid te evalueer. Die bevindings het daarop gedui dat alhoewel ras 'n belangrike invloede op die toetsfaktore uitoefen, dit nie die geval is in soverre dit geslag betref nie. Die teenwoordigheid van probleme het ook ten opsigte van konstrukvergelykbaarheid na vore getree, aangesien betekenis voile verskille tussen gemiddeldes gevind is. Sommige van die implikasies van die volgehoue gebruik van die 16PF (SA92) in Suid Afrika word ook in die lig van die resente arbeidswetgewing bespreek.

scholarly journals Towards A Bill of Rights for a Democratic South Africa

1991 ◽  
Vol 35 (1-2) ◽  
pp. 21-43 ◽  
Author(s):  
Albie Sachs
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
Equal Rights ◽  
World Community ◽  
African People ◽  
Constitutional Level ◽  
The World ◽  
The Individual

All revolutions are impossible until they happen; then they become inevitable. South Africa has for long been trembling between the impossible and the inevitable, and it is in this singularly unstable situation that the question of human rights and the basics of government in post-apartheid society demands attention.No longer is it necessary to spend much time analysing schemes to modernize, reform liberalize, privatize, or even democratize apartheid. Like slavery and colonialism, apartheid is regarded as irremediably bad. There cannot be good apartheid, or degrees of acceptable apartheid. The only questions are how to end the system as rapidly as possible and how to ensure that the new society which replaces it lives up to the ideals of the South African people and the world community. More specifically, at the constitutional level, the issue is no longer whether to have democracy and equal rights, but how fully to achieve these principles and how to ensure that within the overall democratic scheme, the cultural diversity of the country is accommodated and the individual rights of citizens respected.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

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