• Application of the African Charter by African Sub-Regional Organisations: Gains, Pains and the Future

      Ebobrah, ST (JUTA Publishers, 2012-04-05)
      When the African Charter on Human and Peoples’ Rights was adopted in 1981, its founding fathers may have envisaged and hoped that the spirit and content of the Charter would seep down into municipal legal systems for the benefit of African citizens. However, it is doubtful if even the most visionary of African leaders or the most optimistic of human rights advocates ever foresaw the adoption of the African Charter by other African international organisations.   By 2007, the African Charter had become such a common feature in the founding instruments of some regional economic communities in Africa that it was asserted that the Charter was gaining the status of a common sub-regional human rights standard. Since then, the idea of human rights has moved from its lifeless mention in treaty documents into the court rooms of sub-regional judicial bodies and the work of other organs of the sub-regional organisations. While the African Charter has also moved along with the concept of rights realisation in the sub-regional organisations, there have also been theoretical and practical challenges to its application. The Charter is becoming entrenched as an adopted catalogue within the framework of certain RECs, yet in others it is fighting for its survival as an applicable instrument. This contribution analyses the application of the African Charter in sub-regional organisations between 2007 and 2010. The contribution highlights the gains and pains in the application of the Charter and makes projections for the future.
    • Gender-specific HIV policies and programmes at South African workplaces

      Vettori, S (JUTA Publishers, 2012-04-05)
      The purpose of this article is to explore how legislation and common law can be creatively interpreted in the light of the Constitution, soft law and international law so as to create legal duties on the part of employers to implement gender-specific policies and practices in the fight against HIV/AIDS, thereby helping to achieve equality and dignity. However, it is acknowledged that the law, even if imaginatively interpreted in the interests of equality and dignity, cannot alone bring about these ideals. Sexual, cultural and economic transformation can only be achieved in the light of a profound understanding of the fundamental causes of gender inequality so that pro- active strategies to eliminate them can be devised and implemented. Fundamental rights such as the right to equality and the right to dignity can form the foundational basis upon which to ground these strategies and programmes. This foundation must serve as a premise for a society where altered roles related to gender can be learned by society in general. Since commonly accepted expectations with regard to male and female behaviour are of prime importance in the spread of HIV/Aids, changes in these accepted gender roles is where the potential for the elimination of the spread of HIV/AIDS lies.
    • The state of civil society participation in Parliament

      Muntingh, L (JUTA Publishers, 2012-04-05)
      This article explores the extent of public participation in the legislative, oversight and accountability mandates of Parliament. From the analysis of data on public participation in the work of Parliament the key conclusion is drawn that the current state of public participation is almost exclusively focussed on the legislative mandate and that public participation in relation to the accountability and oversight mandates of Parliament is extremely limited.  Defining a new legal order for South Africa based on the Constitution after 1994 required Parliament to finalise hundreds of pieces of legislation in a relatively short period of time. In completing this momentous task, the oversight mandate of Parliament was neglected and consequently public involvement in respect of Parliament’s oversight mandate.  However, the lessons learnt and jurisprudence that has emerged from the 15-year focus on legislation has provided valuable guidelines in deepening participatory democracy in South Africa. The right to public participation in the work of Parliament has now been consolidated based on the Doctors for Life and King decisions, which are discussed in the article. The next challenge is for the public to utilise this right in order to support and strengthen the manner in which Parliament fulfils its oversight mandate.
    • Refugees and asylum seekers: Barriers to accessing South Africa’s labour market

      Kavuro, Callixte (JUTA Publishers, 2016-01-25)
      No Abstract
    • (Illicit) transfer by De Gree

      Sloth-Nielsen, Julia; Mezmur, Benyam D. (JUTA Publishers, 2016-06-15)
      No Abstract
    • The growing informalisation of work: Challenges for labour – recent developments to improve the rights of atypical workers

      Dicks, Rudi (JUTA Publishers, 2016-06-17)
      The South African labour market faces a number of challenges; key to this is the shift from formal employment to atypical work. This phenomenon is not a South African problem but a growing challenge to labour throughout the world. The growing informalisation of the workforce brings significant changes to the traditional employment relationship, including the workplace. Informalisation is characterised by workers shifting from permanent employment to casual employment and fixed-term contracts, outsourcing and employment through labour brokers. These forms of employment are accompanied by growing insecurity of employment, the undermining of basic conditions of employment, the erosion of workplace rights and decreasing access to skills and equity at work. While it is important to understand these changes, society does not seem to have accepted that there is a new form of employment relationship. Various proposals and legislative considerations should be assessed to address and stem the tide of atypical work. These should include improving minimum standards and providing enhanced protection to atypical workers; improving monitoring and enforcement and reforming labour market institutions to better confront the shift from permanent to casualised employment. Research indicates that the shift from formal employment to atypical forms of employment is on the increase. Many workers who exit the labour market having been in formal employment will most likely re-enter the market as an atypical employee. This has had, and will continue to have, a major impact on the character of the workforce. It leads to instability within the labour market and impacts negatively on employment growth, and on the reduction of underemployment and poverty and decreasing inequality. The consequences are greater social and economic insecurity. Existing legislation does not emphasise the protection and improvement of the rights of atypical workers. Organised labour has made useful recommendations for improving protection for atypical workers; particularly those employed in triangular employment relationships. Due consideration should be given to possible legislative changes; the establishment of a tripartite statutory body to regulate labour brokers; the development of a code of good practice for workers engaged in atypical employment contracts and improving monitoring and enforcement mechanism through tougher penalties.
    • Be careful what you wish for…

      Ronnie, Roger (JUTA Publishers, 2016-06-17)
      Closing address to DITSELA Labour Law Seminar, 25 February 2007Some points to ponderThe history of all hitherto existing societies is the history of class struggle.– Marx and Engels Communist Manifesto (1848)The Brazilian worker is a worker surrounded by laws on all sides but dead from hunger. So many laws! But we lack one to keep him from dying of hunger.– Brazilian trade union leader in the 1950s One of the biggest problems for any person trying to understand the South African economy is the question: through whose eyes do we study it? We can look at the economy through the eyes of the capitalists or we can look at it through the eyes of workers. Depending on which set of eyes we use, we’ll see a very different picture.– Political Economy: South Africa in Crisis COSATU Education Publication, 1987
    • Effects on the employment relationship of the insolvency of the employer: A worker perspective

      Carolus, Peter; Galani Tiemeni, Thierry; Ziervogel, Kurt (JUTA Publishers, 2016-06-17)
      The article looks critically at the Insolvency Act prior to the amendments of 2002 and the limited protection it gave workers on the insolvency of their employer. The effect of the Act was that workers’ contracts of employment were automatically terminated by their employer’s insolvency, leaving them with a limited preferent claim against the employer’s insolvent estate. Since certain other creditors (such as the Revenue Service) ranked higher than employees, there was often little left for workers to recover. Another problem was that workers often had no warning of their employer’s insolvency, giving them no opportunity to make representations to save the company – and their jobs. Under pressure from organised labour, the 2002 amendments to the Insolvency Act and the LRA addressed these problems by:• requiring an employer that is facing financial difficulties to advise its employees or their representatives of possible liquidation;• providing that a provisional sequestration or liquidation suspends contracts of employment for a period before they are terminated, rather than terminating them immediately; and• providing for a process of consultation between employees facing dismissal as a result of an insolvency and relevant stakeholders to attempt to reach consensus on appropriate measures to save part or the whole of the business.