2021 volume 1 p 145

• Date: 22 July 2021
• Published date: 22 July 2021

https://doi.org/10.47348/TSAR/2021/i1a9

[ISSN 0257 – 7747]TSAR 2021

. 1

145

Regspraak

DIE KONSTITUSIONELE HOF VERWYDER DIE REG VAN

WERKNEMERS OM NIE ONBILLIK ONTSLAAN TE WORD NIE

UIT DIE BESKERMINGSVELD VAN DIE HANDVES VAN REGTE –

GRONDWETLIKE GESIGSPUNTE

AMCU v Royal Bafokeng Platinum Ltd 2020 4 BCLR 373 (KH), 2020 3 SA 1 (K H)

SUMMARY

THE CONSTITUTIONAL COURT REMOVES THE RIGHT OF WORKERS NOT TO BE

DISMISSED UNFAIRLY FROM THE PROTECTIVE AMBIT OF THE BILL OF RIGHTS –

CONSTITUTIONAL PERSPECTIVES

Section 39(2) of the Constitu tion of the Republic of South A frica, 1996, recog nises the exist ence of rights

not protected i n the bill of rights. The Sout h African bill of rig hts protects human co nduct and interests

extensively. Before the AMCU judg ment was delivered, no clear example of a right not protect ed by the

bill of rig hts had been identied in ca se law and legal literature. I n the AMCU case th e constitutional

court deviated from pr evious judgments by holding that the interests of employees not to be dismissed

unfairly is not cove red by the right to fair labo ur practices in sect ion 23(1) of the constit ution.

The cour t based it s nding on textual an d contextual interpretive considerations. Its interpret ation

of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section

23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended

constitut ional phrases like “fai r” labour practices i s determined. And a n extra-textual refe rence to the

protection of the r ight in ordinary law is not releva nt when the meaning of a constitu tional provision

is determi ned. Aspects of human dig nity and physical and psychological i ntegrity cannot be rem oved

from the prote ctive ambit of the bill of rights bec ause they are protecte d by ordinary ru les of the law of

delict and cri minal law.

Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair

labour pract ices, like the right to acce ss to housing, food, health and so cial services, childre n’s rights

and c riminal and civil procedura l rights, protects other co nstitutional rights i n a particular eld, in

this case in the eld of labour relations. Apart from the fact that it can hardly be contested that every

employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human

dignity, physical and p sychological integrity, econom ic activity, association and audi altera m partem,

may be limited f actually by dismissals a nd dismissal procedures . The scheme and ethos of the South

African bill of rights is that these special rights that overlap with the general rights are guaranteed

separately. Within th is context one of the ironies of the articial exclusion of a right fro m the protective

ambit of the special right is that its violation may, like in systems without these special rights, be

challenged on the ba sis of the unjustiable lim itation of the general rig hts.

A rule of thumb th at the protective ambit of constit utional rights should be inte rpreted restrict ively

because the application of the weak rational relationship test as part of the rule of law serves the

separation of power p rinciple better th an the application of the st ricter reasonable tes t for the limitation

of cons titutional rights (in the se parate con curring judgment of Theron J) is questionable. Whereas

legality as par t of the rule of law is always complie d with when the weak ration ality relationship ex ists,

reasonablenes s in terms of section 36 does not alway s amount to the application of a str icter test. The

existence of a ver y compelling pur pose (to combat a pandemic t hat threaten s life and limb) or a factu ally

slight limita tion of a right (to stop at a stop sign) could be t he basis of a conclusion that the lim itation is

justiable when t he weak rational relations hip test is complied with.

The court’s consideration of proportionality under the umbrella of the application of the weak

rational relationsh ip test causes more uncertainty in the present somewhat unr uly eld of the application

of rationality t ests.

1 Inleiding

Die menslike gedrag en belange wat in die handves van regte in die Grondwet

van die Republiek van Suid-Afrika, 1996 beskerm word, is omvattend. Dit sluit

2021 TSAR 145

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