Acta Juridica

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
0065-1346

Description:

Acta Juridica is the University of Cape Town’s Law Faculty’s law journal. It is published annually as a single issue under the editorship of an issue editor, or issue editors, and comprises commissioned articles on a theme for each year. The annual themes and issue editors are approved by the Faculty Board of the Faculty of Law. Founded in 1956, it has been published by Juta & Co since 2001.

Issue Number

Latest documents

  • The Evolution of the Right to Fair Procedure in Dismissals for Misconduct

    The obligation to follow a fair procedure before dismissing an employee for misconduct, certainly in the private sector, has its origins in the concept of the unfair labour practice, introduced in 1979 by way of an amendment to the Labour Relations Act 28 of 1956. This article traces the history of the development of a right to fair procedure before a decision to dismiss, and attempts to identify the normative basis of and justifications for that right. These included international standards, comparative law, the principles of administrative law applicable to public sector employees, and employer best practice. By 1994, a 'criminal justice' model had evolved, in which pre-dismissal procedures were equated with procedures applied in a criminal court. The Labour Relations Act 66 of 1995 (in particular, the Code of Good Practice: Dismissal) attempted to reduce the cost of elaborate workplace procedures. The legislative package introduced a system of compulsory arbitration for disputed dismissals, with a primary remedy of reinstatement for dismissals found to be substantively unfair, and compensatory awards for dismissals found to be substantively fair, but procedurally unfair. This approach reflects both respect for the autonomy and dignity of the employee, and a justification based on maximising the general welfare. The general welfare is maximised by accommodating the diversity and flexibility of procedural standards, promoting rational decision-making in disciplinary matters, and eliminating the cost of duplicated processes. The Code thus ultimately seeks to combine the normative ideals of worker protection with the achievement of productive efficiency.

  • The Present As History: Workers' Struggles and the Law During and After Apartheid

    Black workers in South Africa in the 1970s fought successfully for their right to be included in the law. Through militant struggles, and with the aid of pioneering lawyers like Halton Cheadle, they produced an inclusive Labour Relations Act (LRA) and the attendant Basic Conditions of Employment Act. Through its independent power base connected to the shopfloor, the labour movement gave trade unions the capacity to mobilise and restrain members, which they used to negotiate to expand legal rights and organisational space and pursue worker control at workplace and industry levels. However, the LRA, and its employer employee binary, marginalises informal workers, and these workers are now waging a battle for recognition. The struggle for informal workers' rights unfolds in a more challenging environment than the 1970s, and no significant changes in law have emerged in the last twenty years of organising. This makes redefining the LRA complex, as informal workers may be own account workers and micro-employers. Labour law is not responsive to the needs of workers in the informal economy and an experimental environment is encouraged. The world of work has changed to such an extent that perhaps we now need the equivalent of the Wiehahn Commission, which transformed the world of labour in the 1980s.

  • The Constitutional Court: Negotiating Between Constitutionalism and Political Power

    The constitutional democratic order has been in place in South Africa for 30 years. During this period the Constitutional Court has established both its authority at the apex of the administration of justice and its legitimacy as the final arbiter of the lawfulness of the exercise of public power in all its manifestations. During its life, the Constitutional Court appears to have been guided in its approach to litigation before it by diverse concerns, often linked to strong personalities within its ranks and the prevailing socio-political context. It is difficult, however, to divine an overarching theory of adjudication to animate its jurisprudence. Such guidance can be discerned by attempts to ‘periodise’ the output of the Constitutional Court, as was attempted by Issacharoff in 2009. The courts have also been criticised and attacked in the public domain by party politicians who seek to divert attention from their unconstitutional conduct to scapegoat the judiciary; this is often accompanied by scandalous assaults on the constitutional order itself. Absent a unifying theory of adjudication in line with the transformative constitutional values at its core, we argue in this article that the Constitutional Court appears vulnerable to such unscrupulous undermining and is insufficiently able to defend itself and so retain public confidence in its stature, independence and fierce impartiality. Through an analysis of key judgments over the past fifteen years in particular, we seek to identify and propose the key elements of such a foundational theory of adjudication, applicable also in the vital sphere of extending constitutional prescripts into the private sphere, as contemplated by the Constitution.

  • ILO Technical Assistance and Law-Making With Integrity: Lesotho's Labour Act of 2024

    This article examines the role of ILO technical assistance in lawmaking and labour law reform, focusing on assistance provided in Lesotho prior to enactment of the Labour Act of 2024. ILO technical assistance often involves the use of external experts with significant influence over the development of domestic labour laws, raising questions about integrity and inclusivity in the law-making process. Drawing on our involvement in Lesotho's labour law reform efforts between 2014 and 2024, the article considers key aspects of ILO assistance in the country's unique socio-economic context. It highlights the importance of ensuring that labour laws are not only technically compliant with ILO conventions, but are also shaped by the deliberations of domestic stakeholders and are socially relevant and responsive to local employment and economic realities.

  • The Impact of International Labour Standards on Democratic Governance and Decent Work in the Era of Global Polycrisis: Selected Southern African Perspectives

    This contribution is a tribute to Halton Cheadle's work over the years, particularly his significant contribution to labour legislation and policy development and the enhancement of the role of international labour standards (ILS) in the SADC sub-region and elsewhere in Africa. Ever since the establishment of the International Labour Organisation (ILO) more than a hundred years ago, ILS has been a persuasive instrument in the search for universal democratic governance norms worldwide. Nowhere has that influence and impact been as visible as in developing countries. The impact of ILS in Southern Africa has been profound, not only in the struggle against racial discrimination, for instance in Zimbabwe and South Africa, but also in fostering labour rights through what was later designated as 'decent work'. In more recent years, the promotion of ILS has been extended through the reform of labour legislation and policy. Cheadle has been deeply involved in the work of labour law reform, starting with South Africa in 1994, efforts that culminated in the current Labour Relations Act 66 of 1995, and then other African countries, such as Nigeria and Tanzania. His contribution continued when he served as a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). In an era that can be characterised as one of ‘global polycrisis’, the importance of ILS as a well-tested yardstick, renewed to address the challenges of a rapidly changing world of work, has become greater than ever before. This article will examine and analyse selected areas related to democratic governance developments.'Had I been present at the creation, I would have given some useful hints for the better ordering of the universe' � Alphonso X, the Learned, King of Spain, 1252�1284

  • Beyond Bargaining: New Horizons for Consultation

    For unions worldwide, winning the right and space to engage in collective bargaining, so empowering them to forge a better deal for their members, has been a central goal for over a century. Bound up with that process has been the pursuit of a right and capacity to strike. Consultation is a more subtle form of engagement, one that has attracted less attention and resources. However, once the raw battles over union recognition and basic employee protections and rewards have been played out, influence in the workplace begins to matter as much as power. A sophisticated framework for consultation affords employees considerable latitude to shape their workplaces even as employers gain from a more fruitful engagement with their workforce. This article examines how different legal systems deal with the oftenintertwined processes of bargaining and consultation, contrasting some European, Japanese and Anglosphere track records. It also compares in closer detail the South African and Australian experiences, advocating a heightened role for consultation in workplace affairs.

  • An Elusive Pursuit: Challenging Invalid Dismissals — Then and Now

    The independent trade union movement that emerged from the 1973 Durban strikes developed legal strategies to protect their members, who were primarily African workers excluded from participation under the Industrial Conciliation Act 28 of 1956. Chief among these strategies was the institution of litigation seeking to nullify dismissals that violated statutory victimisation provisions in those laws that covered African workers. The apartheid-era bench was largely hostile to this approach, and it was not until the 1982 full bench decision in National Union of Textile Workers v Stag Packings that orders of nullity and reinstatement became a possibility . However, by this time the powers of the industrial court, which had been established in 1980, had been extended to include status quo orders and the unions were able to achieve unprecedented protection for their members as the industrial court asserted its unfair labour practice powers. This article explores the legal strategies reflected in the litigation and engaged scholarly writing that gave rise to this important judgment and comments on its significance for contemporary labour law in South Africa.

  • The Reform of Customary Law of Succession Act in contemporary South Africa

    Historically, the customary law of intestate succession was a flexible system of law that prioritised the well-being of the family. The law was distorted during the colonial and apartheid eras to focus on the individual inheritance of property. In 2010, the South African legislature passed the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 – which applies the Intestate Succession Act 81 of 1987 – to regulate the devolution of estates of individuals who live according to customary law and die intestate. This article examines whether the current framework adequately addresses the needs of contemporary South African society. It argues that the prioritisation of the nuclear family for inheritance may be out of sync with the myriad ways in which families are formed and that the Master of the High Court should be given a discretion in the distribution of an estate. This will undoubtedly result in uncertainty but may ameliorate some of the shortcomings of a fixed, rules-based system of inheritance that does not reflect contemporary society. Tshivenḓa: Ḓivhanizwakale, mulayo wa mbingano ya tshirema wa uri muthu a lovha ndaka yawe i ḓo kovhiwa vhukati ha mufumakadzi, vhana, vhabebi na vharathu wo vha u sisiṱeme ya vhutepe ya mulayo une wa vhea phanḓa mutakalo na mvelaphanḓa ya muṱa. Mulayo wo khakhiswa nga tshifhinga tsha koloni na tsha khethululo u itela u sedzesa kha vhuḽaifa ha ndaka ha muthu muthihi. Nga 2010, vhusimamilayo ha Afurika Tshipembe ho phasisa Mulayo wa Khakhululo ya Mulayo wa Mbingano ya Tshirema wa Vhuḽaifa na Ndaulo ya Mafhungo a re na Vhushaka nazwo wa 11 wa 2009 – une wa shumisa Mulayo wa u Kovha Ndaka Vhukati ha Vhaḽaifa wa 81 wa 1987 – u laula u fhiriselwa ha ndaka ya vhathu vho lovhaho vhane vha tshila u ya nga mulayo wa mbingano ya tshirema vha lovha vha so ngo sia wiḽi. Athikili iyi i ṱola arali muhanga wa musalauno u tshi dzudzanya zwavhuḓi ṱhoḓea dza tshitshavha tsha MaAfurika Tshipembe tsha musalauno. U ṱaṱa uri u vhewa phanḓa ha tshigwada tsha muṱa u itela u vhuḽaifa a zwi tsha tendelana na nḓila dzine zwigwada zwa miṱa zwa vhumbwa ngayo na uri Ṱhoho ya Khothe ya Nṱha u fanela uṋewa maanḓa a u dzhia tsheo kha u kovha ndaka ya mufu. Izwi zwi hu si na u timatima zwi ḓo ḓisa u sa vha na vhuṱanzi fhedzi zwi nga ḓisa u fushea kha zwiṅwe zwa vhukolikoli ha sisiṱeme yo vhewaho, yo ḓisendekaho kha milayo ya vhuḽaifa vhune ha si bvisele khagala tshitshavha tsha musalauno.

  • The Reform of Customary Law of Succession Act in contemporary South Africa

    Historically, the customary law of intestate succession was a flexible system of law that prioritised the well-being of the family. The law was distorted during the colonial and apartheid eras to focus on the individual inheritance of property. In 2010, the South African legislature passed the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 – which applies the Intestate Succession Act 81 of 1987 – to regulate the devolution of estates of individuals who live according to customary law and die intestate. This article examines whether the current framework adequately addresses the needs of contemporary South African society. It argues that the prioritisation of the nuclear family for inheritance may be out of sync with the myriad ways in which families are formed and that the Master of the High Court should be given a discretion in the distribution of an estate. This will undoubtedly result in uncertainty but may ameliorate some of the shortcomings of a fixed, rules-based system of inheritance that does not reflect contemporary society. Tshivenḓa: Ḓivhanizwakale, mulayo wa mbingano ya tshirema wa uri muthu a lovha ndaka yawe i ḓo kovhiwa vhukati ha mufumakadzi, vhana, vhabebi na vharathu wo vha u sisiṱeme ya vhutepe ya mulayo une wa vhea phanḓa mutakalo na mvelaphanḓa ya muṱa. Mulayo wo khakhiswa nga tshifhinga tsha koloni na tsha khethululo u itela u sedzesa kha vhuḽaifa ha ndaka ha muthu muthihi. Nga 2010, vhusimamilayo ha Afurika Tshipembe ho phasisa Mulayo wa Khakhululo ya Mulayo wa Mbingano ya Tshirema wa Vhuḽaifa na Ndaulo ya Mafhungo a re na Vhushaka nazwo wa 11 wa 2009 – une wa shumisa Mulayo wa u Kovha Ndaka Vhukati ha Vhaḽaifa wa 81 wa 1987 – u laula u fhiriselwa ha ndaka ya vhathu vho lovhaho vhane vha tshila u ya nga mulayo wa mbingano ya tshirema vha lovha vha so ngo sia wiḽi. Athikili iyi i ṱola arali muhanga wa musalauno u tshi dzudzanya zwavhuḓi ṱhoḓea dza tshitshavha tsha MaAfurika Tshipembe tsha musalauno. U ṱaṱa uri u vhewa phanḓa ha tshigwada tsha muṱa u itela u vhuḽaifa a zwi tsha tendelana na nḓila dzine zwigwada zwa miṱa zwa vhumbwa ngayo na uri Ṱhoho ya Khothe ya Nṱha u fanela uṋewa maanḓa a u dzhia tsheo kha u kovha ndaka ya mufu. Izwi zwi hu si na u timatima zwi ḓo ḓisa u sa vha na vhuṱanzi fhedzi zwi nga ḓisa u fushea kha zwiṅwe zwa vhukolikoli ha sisiṱeme yo vhewaho, yo ḓisendekaho kha milayo ya vhuḽaifa vhune ha si bvisele khagala tshitshavha tsha musalauno.

  • A reflection on my academic career

    This paper is a story of my academic journey. It is a reflection on my career, highlighting the barriers and opportunities in the development of my institutional leadership, research and teaching career. It also provides glimpses, first, of how my research interests were developed and the factors that influenced my development as an academic and, secondly, of strategies adopted for the development of human capital to ensure the continuation of scholarship in the field of my work in future generations. Finally, the paper outlines the challenges I identified and engaged with in my research in the broad field of family law, including the law governing the institution of marriage and its dissolution, and their respective consequences, as well as the law governing inheritance under both common law or received law and customary law, and the legalised pluralism that this entails.

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