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.

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.

SOUTH AFRICA’S ENDURING COLONIAL NATURE AND UNIVERSITIES

2020 ◽  
Vol 40 (1) ◽  
Author(s):  
Johann Rossouw
Keyword(s):  
South Africa ◽  
South African ◽  
Focal Point ◽  
State Power ◽  
Pattern Language ◽  
Post Colonial ◽  
South African Universities

This article focuses on the question of South African decolonisation with particular reference to the Afrikaners as both the colonised and the coloniser. It is argued that Afrikaners winning state power in 1948 became something of an ironicblueprint for African post-colonial countries — nominally independent and free, but in reality still colonies. The enduring colonial characteristics of South Africa are briefly discussed, and how Afrikaner- and African nationalists in power turnedout to be variations of a post-colonial pattern. Language is discussed as a focal point of this pattern since 1948, also with regards to the 2015 student revolts at South African universities. In conclusion some proposals are offered about whatdecolonisation should be, and what universities can contribute to it.

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.

scholarly journals ‘I know my place’- The hidden curriculum of professional hierarchy in a South African undergraduate medical program: A Qualitative Study

2021 ◽  
Author(s):  
Jacob Sons ◽  
Bernhard Gaede
Keyword(s):  
South Africa ◽  
Medical Students ◽  
South African ◽  
Clinical Setting ◽  
Hidden Curriculum ◽  
Ethnographic Study ◽  
Local Context ◽  
Local Analysis ◽  
Clinical Teachers ◽  
Post Colonial

Abstract Background The hidden curriculum of professional hierarchy refers a tacitly acquired perception of a power differential between medical students and their clinical teachers. This power gradient is enforced and maintained by means of humiliation and race- and gender prejudices. The consequences of these pedagogical approaches include disillusionment, anxiety, depression and suicide among student populations. Little is known about this phenomenon in the post- colonial African setting.ObjectivesThe aim of this study was to explore the hidden curriculum of professional hierarchy as it is perceived by medical students. The objective was to define how it manifests and to describe the mechanism that enforce and maintain it.MethodsAn ethnographic study was conducted at a South African University. Through twelve in- depth interviews and 6 months’ participant observations in the clinical setting an understanding of the students’ experience was explored. NVivo software was used to perform a thematic analysis using an open coding method. The themes were then progressively refocussed as broader themes emerged and a deeper understanding of the hidden curriculum developed.ResultsFrom the interviews and the observations, we found that humiliation of students, racism and sexism was used to enforce the professional hierarchy between clinical teachers and students. Students felt discouraged and demotivated by such encounters.ConclusionsThe hidden curriculum of professional hierarchy plays a significant role in how students understand and find their place in the clinical setting. Humiliation continues to play a role despite institutional policies and guidelines and the transition to a democratic dispensation in 1994 in South Africa. Our findings resonated with the findings of international studies exploring the hidden curriculum. Using a historical perspective of the medical school where the study was conducted, the post-colonial lens offers a useful local analysis of the hidden curriculum in the local context of continued gender-based violence, racial, socio-political and economic inequalities in South Africa. It may allow for a more critical engagement with the students’ experience and hopefully assists in exploring institutional values in more profound ways.

scholarly journals The "Double-edged Sword" of Institutional Power: COSATU, Neo-liberalisation and the Right to Strike

2019 ◽  
Vol 10 (2) ◽  
Author(s):  
Carin Runciman
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Analytical Framework ◽  
The South ◽  
Labour Relations ◽  
Institutional Power ◽  
Power Resources ◽  
Legal Provisions ◽  
The Right

On 1 January 2019 amendments to the Labour Relations Act came into force that significantly altered and curtailed the right to protected strike action in South Africa. Internationally, the right to strike has been eroded in recent years with many countries adopting legal provisions that violate the International Labour Organization’s principles. Comparatively, the rights of South African workers to go on protected strikes remain better than many other places in the world, a reflection of the militant history of the South African labour movement. But the erosion of these rights, with the active support of the Congress of South African Trade Unions, should be a cause for concern for activists and labour scholars in South Africa and beyond. This article develops the Power Resources Approach to consider how union institutional power has entrenched neo-liberalism in South Africa. Grounding the analysis of institutional power within the analytical framework of corporatism allows this article to develop an analysis of institutional power that is attentive to class forces. This provides an avenue for understanding the “double-edged sword” of institutional power in the South African context in order to comprehend when and under what circumstances trade unions advance and defend the interests of the working class and when they defend those of capital.  KEY WORDS: labour; neo-liberalism; institutional power; corporatism; South Africa

scholarly journals Deciphering Dangerousness: A Critical Analysis of Section 286A and B of the Criminal Procedure Act 51 of 1977

2019 ◽  
Vol 22 ◽  
pp. 1-25
Author(s):  
Windell Nortje ◽  
Abraham Hamman ◽  
Chesne Albertus
Keyword(s):  
South Africa ◽  
South African ◽  
Crime Rate ◽  
Critical Analysis ◽  
Preventive Measures ◽  
Criminal History ◽  
Legal Provisions ◽  
History Of ◽  
High Crime ◽  
High Crime Rate

The violent nature of some crimes and the high crime rate in South Africa reflect the fact that some offenders constitute a real threat to the security of communities. It is understandable, therefore, that the state seeks to protect its citizens through preventive measures. Although South Africa has certain legal provisions on its statutory books, it seems that the declaration of persons as dangerous criminals is under-utilised. South African legislation dealing with the declaration of dangerous criminals can be improved by borrowing some traits of the Canadian legislation. Such features include the restriction of courts' discretion and the provision of concrete and more detailed guidelines on the nature of the offences for which the provision can be applied. The courts could also take into account the type of criminal history of the offender which would merit the declaration of a dangerous criminal. It is also important that the extent of the violence in an offence should be thoroughly defined in court. Courts need to balance their wide discretion on the matter with the provisions in the Act in order to protect the community against dangerous criminals.

scholarly journals Literary translation, symbolic development and inclusion in South Africa

Literator ◽  
2021 ◽  
Vol 42 (1) ◽  
Author(s):  
Maricel Botha
Keyword(s):  
South Africa ◽  
South African ◽  
Social Transformation ◽  
Theoretical Perspective ◽  
Translation Studies ◽  
Literary Translation ◽  
African Society ◽  
South African Society ◽  
The Moment ◽  
Local Languages

Post-apartheid South African society remains characterised by significant social asymmetries and the need for development. Yet development should encompass not only meeting people’s material needs to ensure survival, but also the attainment of higher social ideals such as solidarity, citizenship and inclusion. Literary translation involving local languages has been posited as one way of attaining such ideals, yet this postulation requires further investigation. The main objective of this article is to investigate the intersections between literary translation and social transformation in South Africa from the perspective of symbolic development, which is accompanied and complemented by a consideration of symbolic exclusion. The focus is firstly on the theoretical connections between literary translation, development and inclusion and secondly on the practical disjunctions between these. The article finds that in theory, there is ground to promote literary translation as a means towards symbolic development because of its ability to equalise language statuses and promote intercultural appreciation. Yet, the highly commodified nature of literature amidst the continuation of socioeconomic inequalities as well as the position of English in literature detract from translation’s ability to foster symbolic development realistically within society at large, at least for the moment. From a theoretical perspective, the utility of incorporating development into translation studies remains significant, however, and translation studies could benefit from further investigation of translational development locally, mainly for its ability to direct research practically towards socially beneficial goals, specifically when combined with exclusion.

Concepts of Reading in South African Promotion Campaigns

Mousaion ◽  
2018 ◽  
Vol 35 (3) ◽  
Author(s):  
Elizabeth Le Roux
Keyword(s):  
South Africa ◽  
South African ◽  
Theoretical Perspective ◽  
The Social ◽  
Social Meanings ◽  
Dominant Ideologies ◽  
Words And Images ◽  
Promotion Campaigns ◽  
Social Uses ◽  
Reading Promotion

Amid ongoing concerns about the reading decline, the lack of a “reading culture” and children not reading enough, a variety of solutions are put forward, largely in the form of reading promotion campaigns. These campaigns are seldom sustainable, usually owing to sporadic funding. However, this paper considers whether another factor that affects the sustainability of such campaigns has to do with how they are conceptualised, and whether it is a mismatch between aims and outcomes. Working from a theoretical perspective of the social uses of literacy, the paper examines discourses around reading and how they reflect certain dominant ideologies, social meanings and values. Based on a content analysis of the main publicity, communications and speeches associated with some of the dominant reading promotion campaigns in South Africa, the paper examines the words and images being used to promote reading, and how these affect the evaluation of such reading campaigns.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Novel ◽  
Labour Law

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

scholarly journals The impact of the Bible and Bible themes on John Rangiah's Ministry in South Africa

2012 ◽  
Vol 33 (1) ◽  
Author(s):  
Rodney Ragwan
Keyword(s):  
South Africa ◽  
South African ◽  
Early Life ◽  
African Continent ◽  
Baptist Church ◽  
Post Colonial ◽  
The Bible ◽  
Kwazulu Natal ◽  
The Impact ◽  
Insight Into

John Rangiah was the first Indian Baptist missionary who came to Natal (today called KwaZulu-Natal). He was born in India in 1866 and died in 1915. He established the first Telugu Baptist Church on the African continent in Kearsney, Natal. In the corpus of South African Baptist mission literature, the contribution of John Rangiah is given very little attention. Although he is referenced by Baptist historians for his work amongst Indian Baptists, the impact of the Bible and Bible themes as well as his theology in South Africa have not been examined. This article provides insight into Rangiah�s early life and faith, and critically examines his understanding of the Bible and its themes, such as the Bible, prayer, salvation and eschatological hope. These themes will be critically examined from a conservative evangelical perspective and thereafter attempts to examine these using elements of post-colonial hermeneutics will be undertaken.

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