Browsing by Author "Maqutu, Lindiwe Nomachezi."

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Derivative misconduct and the reciprocal duty of good faith: employee silence in identifying perpetrators of misconduct.
(2019) Pillay, Karyn.; Maqutu, Lindiwe Nomachezi.
The reciprocal duty of good faith is recognised in our South African labour law which requires employees to not behave in a manner that is detrimental to an employer’s enterprise and should at all times remain faithful and loyal in continuing employment within the business. The reciprocity lies in an employer providing job security and remuneration for work done in furtherance of the business. A breach of the duty of good faith can result in dismissal where an employee merely remains silent in circumstances which calls upon them to divulge pertinent information that could lead to the detection of the perpetrators to the primary misconduct. Employers rely on the notion of derivative misconduct wherein they argue that there had been a breakdown in the trust relationship and draw inferences of guilt attributed to those silent employees in that they knew or ought to have known whom the actual culprits were and make themselves look guilty because of this silence. Due to employers being not able to identify the actual culprits, they in turn dismiss all employees said to be in the vicinity of the impugned misconduct. However, the Constitutional Court has now added that in order for employers to rely on the notion of derivative misconduct, they need to show reciprocity on their part as well. Actually expecting employees to come forth and divulge pertinent information in misconduct investigations, and not act passive in circumstances which requires them to do more, is asking a bit too much of them without providing some sort of protection in return. Protection in these circumstances would be to provide assurance that they would not face victimisation in the workplace by ratting on their fellow peers. This would prevent any injustice to those employees who may actually be innocent and not have any information, but merely remain silent in such circumstances. New Zealand has also codified the principle of good faith in their legislation. South Africa still relies on the common law when applying the principle of good faith. It is submitted that from the investigations conducted, many scholars are of the opinion that this concept is rather complex and to have it codified would actually cause much more uncertainty. Having it codified would merely provide a guideline, however, the courts would still rely heavily on the common law to provide structure to the concept with the courts dealing with the concept on a case by case basis depending on the facts of the case.
The postcoloniality of labour law: a South African perspective.
(2020) Maqutu, Lindiwe Nomachezi.; Mnyongani, Freddy Duncan.; Reddi, Managay.
This study locates itself in endeavours to decolonise the accepted legal knowledge. It concerns itself with the formation of South African labour law and reflects critically on the ideology informing the concept of labour and labour law since the colonial incursion of Europeans. A contrapuntal examination of the law which developed a wage labour system that denied Africans pertinent recognitions and entitlements is carried out using the vantage of postcolonial theory. The process advances revisiting the text of laws from a locus that centres the predicament of Africans rather than colonial preoccupations. Therefore the narration of the management of Africans during the nineteenth and twentieth centuries and the convoluted interaction between evolving social, political and economic institutions is revealed as labour law. With a particular focus on the circumstances of African mine workers in the then Transvaal, the study widens the understanding of historically operative labour law. Using early law, this study maps the development of an appetite for cheap labour following colonial invasion, which accelerated with the discovery of mineral deposits in South Africa. A comprehensive disclosure of the founding assumptions of labour law, such as territorial seizures, enslavement, corporeal deprivation and the development of corresponding property rights, highlights the damage wrought. An excavation of the often-overlooked objectives and repercussions of legal provisions reveals that they rested on the conviction that African humanity ought to be downgraded. It began with the superior-inferior reasoning that yielded the master and servant positioning of relations between the white arrivals and Africans. The attempts to resolve the ‘native question’ were the fulcrum of the conceptual order that has been devised. An examination of the post-apartheid hegemony of labour law considers whether the retention of the Eurocentric structures, under which labour relations are consigned to operate, is legitimated by the seeming incorporation of Africans into the scheme. The results indicate that the touted generalisable corporate benefits of collective bargaining and workplace compensation are deficient because they perpetuate the colonial notion of privileging a few at the expense of the many. Therefore a process of restoring faith in and being guided by African philosophical paradigms for the fashioning of South African labour law is required.
Strike violence: should protected strikes lose their protected status due to violence?
(2019) Dlamini, Maliviwe.; Maqutu, Lindiwe Nomachezi.
No abstract available.