Doctoral Degrees (Labour Law)
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Item A critical investigation into the reality of decolonising labour law: a South African perspective = Uphenyo oluhlaziyayo ebukhoneni bokuguqula umthetho wabasebenzi wokungaqoneli: indlelakubuka yaseNingizimu Afrika.(2023) Mabaso, Fanelesibonge Craig.; Tenza, Mlungisi Ernest.; Whitear-Nel, Nicola Jane.This study analysed labour law as more than just what the law is, at face value. The study examined labour law as being influenced by socio-political narratives. To better understand these socio-political narratives and their influences on labour law, the study posed much needed questions concerning race, gender and class in relation to labour law. The study noted that all of these socio-political narratives have been ignored social issues, which are collectively at the forefront to understanding decolonisation. The crux of the dissertation was the reality of decolonising labour law in South Africa. The study used the principle of decolonisation as means of addressing the issues faced by workers in the workplace. The study viewed decolonisation as a suitable tool of analysis in that it allowed the study to use the concept of intersectionality. Linking race, class and gender as the primary points of the oppression of employees in South Africa. The study addressed the different terminologies that were at the centre of the thesis, such as Whiteness, Blackness and African. The importance of this is that these terms are often used interchangeably but within the context of the study, they each play a different role in understanding the racial makeup of the South African workplace. The study presented a discussion of labour law advancing access to justice for the working class through the rejection of the civil litigation principle of costs orders following the result. This discussion highlighted the need to not simply burden workers with costs orders that would deter the poor, often black, workers from fighting injustices in the workplace. The study dealt with the omission of domestic workers from the definition of ‘employee’ in COIDA and provided a discussion on the intersectionality of this apartheid-rooted exclusion. The study also addressed the issue of the commodification of workers through a complete disregard of labour brokerage and suggestion that employees be given a right of first preference in share schemes. The study also discussed the appropriate remedy to racism in the workplace. Finally, the study addressed the link between race, class and the right to strike. Iqoqa. Ucwaningo luhlaziye umthetho wezisebenzi ngokungaphezulu kokuthi umthetho wezisebenzi ungumthetho nje, njengobukeka kwawo. Ucwaningo luphenye umthetho wezisebenzi njengoba incazelo yawo inomthelela wezingxoxo zenhlalo yomphakathi nepolitiki. Ukuqonda kangcono incazelo yezingxoxo zenhlalo yomphakathi nepolitiki nomthelela wayo emthethweni wezisebenzi, ucwaningo lubuza imibuzo edingekayo emayelana nobuhlanga, ubulili kanye nohlobo ngokomnotho ebudlelwaneni bakho nomthetho wezisebenzi. Ucwaningo luqaphelise ukuthi zonke lezi zincazelo ngenhlalo yomphakathi nepolitiki bekungezomphakathi ebezinganakiwe, ezihlanganiswa ndawonye phambili, ukuqonda ukuguqula ukuqonela. Ubumqoka balolu cwaningombhalo ubunjalo bokuguqula umthetho wabasebenzi eNingizimu Afrika. Ucwaningo lusebenzise ubunjalo bokuguqula ukuqonela njengendlela yokubhekana nezimo ezibhekene nezisebenzi emsebenzini. Ucwaningo lubuke ukuguqula ukuqonela njengensiza ekulungele ukuhlaziya njengoba luvumele ucwaningo ukuthi lusebenzise umqondomsuka yokuhlobana kwezingxenye. Ukuxhumanisa ubuhlanga, uhlobo ngokomnotho kanye nobulili njengamaphuzu anqala okucindezela abasebenzi eNingizimu Afrika. Ucwaningo lubuke amatemu ahlukene abephakathi nendawo nomqulu, afana nobuMhlophe, ubuMnyama kanye nokuba ngum-Afrika. Ukubaluleka kwalokhu ukuthi la amatemu ajwayele ukusetshenziswa ngokushintshana engqikithini yocwaningo, ngalinye libamba iqhaza elehlukile ukuqonda ukwakheka kobuhlanga endaweni yokusebenza eNingizimu Afrika. Ucwaningo luveze izingxoxo zomthetho wezisebenzi eziveza phambili ukungeneleka ebulungisweni eqoqweni labantu elisebenzayo ngokubandlululwa emthethweni wenqubo yezimiso zezindleko zokuqulwa kwecala emva kwemiphumela. Le ngxoxo igqamise isidingo sokungavele wethwese umthwalo wezisebenzi ngezindleko ezingaba nomphumela ongemuhle ezisebenzini ezimpofu, ngokujwayelekile ezimnyama, ngokulwela ubulungiswa emsebenzini. Ucwaningo lubheke nokushiywa ngaphandle kwezisebenzi zasezindlini encazelweni yokuthi ‘isisebenzi’ kwi-COIDA futhi lwanikeza incazelo yokuhlobana kwezingxenye zalokhu kubandlululwa okuncike esikhathini sobandlululo. Ucwaningo lubuke futhi indaba yokwenziwa izisebenzi kwemikhiqizo edayisekayo, nokunakekelwa okugcwele ngendlela yokunganaki izivumelwano zokusebenza, nokuphakamisa ukuthi izisebenzi zinikwe imvume yokuzikhethela bona kuqala ezinhlakeni zokwabelana. Ucwaningo luphinde futhi kwabuka ukulungiseka okwamukelekile kwelobuhlanga emsebenzini. Okokugcina, ucwaningo lubuke ubudlelwane phakathi kobuhlanga, uhlobo ngokomnotho kanye namalungelo okulwela izidingo.Item Transformational leadership as a tool to effectively implement the legislation governing disability in the workplace: the case of eThekwini Metropolitan Municipality.(2019) Nxumalo, Lindani Goodman.; Mutambara, Emmanuel.; Holness, Willene Audri.The South African government has enacted various labour laws intended to transform the country to empower previously underprivileged South Africans to enjoy equal access and fair treatment in the workplace. This legislation includes provisions aimed at promoting respect for the human rights for persons with disabilities and to guarantee their protection afforded by the Constitution. The challenge, however, lies with implementation of the legislation and disability policies. While there has been a principled undertaking, confirmed at least on paper in government policy and legislation, to include persons with disabilities in mainstream society as autonomous and full members with dignity and opportunities, such opportunities remain restricted, and human ability and dignity are stifled thereby compromised. In terms of the Disability Code and labour legislation, the duty to manage execution of the Code and disability related legislation is the responsibility of workplace leaders, ie the senior management of the organisation. It follows that failure to implement disability related laws by senior management means that persons with disabilities will remain excluded in the workplace. This study explored the role of transformational leadership in the implementation of disability law in the workplace particularly in the public sector. It further examined the role of transformational leadership on disability inclusion and equality in the Ethekwini Municipality (the Municipality), Durban, South Africa. Additionally, the study investigated obstacles hindering effective implementation of disability law in the Municipality. The study is multidisciplinary in that it incorporates leadership (management studies) and the law. In this context, the study is empirical in nature based on qualitative interviews with employees with disabilities and senior management (leaders) of the Municipality responsible for developing strategies and implementation of disability related legislation, to ascertain their perspective on transformational leadership and its impact on disability inclusion in the workplace. The assertion is that it is the role of the workplace leaders to guarantee effective implementation of disability laws in the workplace. Consequently, the study explored obstacles faced by Municipal leaders towards effective implementation of disability laws. Furthermore, the study utilised doctrinal (legal) research by examining international and domestic instruments on disability. The study applied a socio-legal approach to analyse the law and to understand the social impact through the interviews conducted with leaders and employees with disabilities. Thus, the socio-legal approach complements both the doctrinal and the empirical research methodologies. Among the findings of the study is that there is a lack of leadership commitment and political will to include persons with disabilities in the Municipality. Additionally, conflicting understandings of the concept of disability and the lack of disability policies and strategies were found to be among the hindrances to disability inclusion and equality in the Municipality. There is a stigma attached to persons with disabilities and the working environment is not conducive for them. Disability is not a priority issue, it is merely considered for compliance with relevant laws and targets and not to ensure their full inclusion in the Municipality. Notably, this study found that transformational leadership is an important leadership approach to adopt to include and promote full participation of persons with disabilities in the workplace and to ensure an inclusive workplace culture. The study recommends transformational leadership models that can be utilised by the Municipality to change the status quo and to transform an exclusionary workplace environment to the one that promotes inclusion of and full participation by persons with disabilities in all occupational levels in the Municipality.Item Extension of social security benefits to women in the informal economy: a case for maternity protection.(2021) Hicks, Janine Louise.; Reddi, Managay.This study addresses the central issue that only workers recognised as ‘employees’ by South Africa’s labour law framework qualify for social security benefits. It highlights that, as a result, self-employed and atypical workers have no access to maternity benefits in the form of paid maternity leave, resulting in financial hardship – particularly for those in informal employment. The study finds that this exclusion constitutes a violation of core constitutional rights to equality, dignity, life, health, social security, and those of children, and a failure on the part of the state to give effect to its legal obligations in terms of international law. It argues further that the state’s differential treatment of self-employed workers, and the resulting impact on their constitutional rights to equality and dignity, constitutes unfair discrimination, which would not be permitted in terms of the limitations clause. Equally, the study considers the policy advocacy strategies utilised by self-employed women in the informal economy, to mobilise and lobby for law reform to address the violation of their rights. It examines whether state institutions supporting democracy, such as the Commission for Gender Equality (CGE), can play a role in initiating law reform processes to leverage state accountability on its gender equality obligations and commitments. It concludes that current weaknesses within the National Gender Machinery (NGM) undermine this potential, and that the measures required for the CGE to take up and act on an individual complaint and escalate this to the national policy level, are unsustainable and indicate failed institutionalism. The study examines best practice in countries of similar socio-economic status to South Africa, finding that such countries have successfully extended maternity benefits to self-employed workers through affordable, administratively efficient mechanisms that give effect to key components of International Labour Organisation Maternity Convention 183. The study draws out practical design and implementation considerations that would need to be addressed by the state, to ensure that the most vulnerable category of self-employed workers – predominantly in the informal economy – would be able to access maternity benefits, making recommendations for the South African Law Reform Commission process currently underway.Item 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.Item The reconciliation of work and care : a comparative analysis of South African Labour Laws aimed at providing working parents with time off to care.(2017) Behari, Asheelia.; Cohen, Tamara Jodi-Ann.; Subramanien, Darren Cavell.The purpose of this thesis is to examine the adequacy of South African labour laws which regulate the rights of employees to take time off from work to attend to care-giving responsibilities. It engages in a comparative analysis between South African labour laws, international and regional labour standards, and the laws of the United Kingdom which govern the reconciliation of work and care. Work–care reconciliation can be achieved through the reorganisation of work to account for family interests and responsibilities. Labour laws must be used to restructure working times through the incorporation of family-friendly policies, with particular emphasis on statutory leave provisions. As such, the reconciliation of work and care requires the statutory recognition of time off from work for employees to attend to their family responsibilities. This thesis relies on labour standards set out by international and regional organisations as indications of minimum standards which should exist within a comprehensive legislative package aimed at the reconciliation of work and care. These minimum standards have been identified as maternity leave, adoption leave, paternity leave, parental leave, emergency care leave, and flexible working arrangements. Maternity leave should be comprised of a period of leave over the pregnancy, childbirth, and postnatal care of the child; benefits in the form of cash for the period of maternity leave; health protection at work during pregnancy and the period of breastfeeding; employment protection which provides security of employment and the right to return to work after maternity leave, as well as protection against discrimination based on maternity; and periods of breastfeeding breaks available to employees at the workplace. South African labour laws provide employees with rights to maternity leave and family responsibility leave. Section 25 of the Basic Conditions of Employment Act 75 of 1997 provides pregnant employees with four consecutive months of maternity leave. Section 27 provides employees with family responsibility leave, available for the duration of three days to both men and women for the general purpose of caring for a family member. By examining the scope, duration, qualifications, and affordability of maternity leave and family responsibility leave, this thesis will seek to ascertain whether these leave entitlements have limitations in their capacities to accommodate employees with care-giving responsibilities. The laws of the United Kingdom are relied on as a comparative foreign legal system which has made numerous policy initiatives and legal reforms within the area of the reconciliation of work and care. Fuelled by a political agenda, the commitment of the government of the United Kingdom towards family-friendly legislative rights has led to the adoption of an inclusive and comprehensive statutory package aimed at the reconciliation of work and care. These statutory provisions are set out and examined with the objective of providing insight to the measures which are necessary to ensure the adequacy of South African labour legislation aimed at the reconciliation of work and care. The comparative analyses of international and regional labour standards, together with the laws of the United Kingdom, lead to a series of recommendations in the form of amendments to current labour legislation and the introduction of new legislative provisions. This thesis concludes with proposals aimed at ensuring that employees with care-giving responsibilities are provided with options of leave entitlements which accommodate their individual needs according to affordability and family structure. As such, it calls for legislative reform in the labour laws of South Africa to provide employees with a comprehensive legislative package aimed at the reconciliation of work and care.Item "A critical analysis of the employers' obligations in combatting and eliminating sexual harassment at the workplace or extension of the workplace in South Africa".(2016) Mabunda, Emmanuel Vusi.; Whitear-Nel, Nicola Jane.Abstract available in PDF file.