Justifications and limitations of affirmative action
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
Unfair discrimination and affirmative action in the workplace
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
- Full Text:
- Date Issued: 2018
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
- Full Text:
- Date Issued: 2018
Discrimination based on age in labour law
- Authors: Oosthuizen, Tania
- Date: 2017
- Subjects: Age and employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Age discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19484 , vital:28884
- Description: This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
- Full Text:
- Date Issued: 2017
- Authors: Oosthuizen, Tania
- Date: 2017
- Subjects: Age and employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Age discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19484 , vital:28884
- Description: This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
- Full Text:
- Date Issued: 2017
The programmatic enforcement of affirmative action
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
The legal consequences of failure to give effect to affirmative action measures
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
A comparison between the approaches to unfair discrimination in employment in South Africa and Nigeria
- Authors: Odeyemi, Hannah Olubunmi
- Date: 2012
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10270 , http://hdl.handle.net/10948/d1012054 , Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Description: Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
- Full Text:
- Date Issued: 2012
- Authors: Odeyemi, Hannah Olubunmi
- Date: 2012
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10270 , http://hdl.handle.net/10948/d1012054 , Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Description: Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
- Full Text:
- Date Issued: 2012
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
The defence of inherent requirements of the job in unfair discrimination cases
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
Affirmative action in terms of the Empolyment Equity Act
- Authors: Mgcodo, Yolanda Thandile
- Date: 2004
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11048 , http://hdl.handle.net/10948/356 , Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Description: The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.
- Full Text:
- Date Issued: 2004
- Authors: Mgcodo, Yolanda Thandile
- Date: 2004
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11048 , http://hdl.handle.net/10948/356 , Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Description: The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.
- Full Text:
- Date Issued: 2004
Unfair discrimination in employment
- Gixana-Khambule, Bulelwa Judith
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
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