Note: The Influence of Disability Models on the Employment of People with Disabilities in the Public Service

by | Jan 12, 2025 | ILJ, ILJ V46 I1

Notes: The Influence of Disability Models on the Employment of People with Disabilities in the Public Service

Authors CJ Tchawouo Mbiada & MA Nkosi

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda; Deputy Director: Employee Health and Wellness, Department of Sport, Arts and Culture; LLB, LLM (UNISA), LLD Candidate (UNISA)
Source: Industrial Law Journal, Volume 46 Issue 1, 2025, p. 29 – 43
https://doi.org/10.47348/ILJ/v46/i1a2

Abstract

In 2005 and subsequently the government adopted a social model of disabilities with the aim that the public service should comprise at least 2% of persons with disabilities (PWDs), thus distancing itself from past practices under the apartheid regime that ostracised PWDs from the mainstream economy and society. Yet almost two decades later, the government is yet to achieve this target. The note examines different models of disability to ascertain whether they may account for this failure. It argues that despite adopting the social model, government’s adherence in practice to the previous medical model accounts for its failure to meet the 2% target of employment of PWDs.

Case Notes: The Making of a ‘Modern’ Trade Union: Simunye Workers Forum v Registrar of Labour Relations (2023) 44 ILJ 2021 (LC)

by | Jan 12, 2025 | ILJ, ILJ V46 I1

Case Notes: The Making of a ‘Modern’ Trade Union: Simunye Workers Forum v Registrar of Labour Relations (2023) 44 ILJ 2021 (LC)

Author Marlese von Broembsen

ISSN: 2413-9874
Affiliations: Associate Professor of Law, Centre for the Transformative Regulation of Work (CENTROW), University of the Western Cape; Senior Researcher in Labour Rights, Women in Informal Employment: Globalizing and Organizing (WIEGO); BA (Stell), LLB (UCT), MA (UWC), LLM (Harv), PhD (UCT)
Source: Industrial Law Journal, Volume 46 Issue 1, 2025, p. 44 – 59
https://doi.org/10.47348/ILJ/v46/i1a3

Abstract

In Simunye Workers Forum v Registrar of Labour Relations the court considers whether trade unions established by non-standard workers must conform to a traditional trade union structure in order to be registered as a trade union. It is argued that the court’s generous interpretation of s 95 of the LRA is correct in the light of Bader Bop and the jurisprudence of the ILO supervisory mechanisms on the conventions that apply to non-standard workers. Moreover, it is contended that a restrictive interpretation of s 95 would contravene international law and the spirit, purpose and objectives of s 23 of the Constitution and of s 8 of the LRA.

Case Notes: Employment after a Criminal Conviction — A Hope for Prospective Employees with Previous Criminal Records? An Analysis of O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC)

by | Jan 12, 2025 | ILJ, ILJ V46 I1

Case Notes: Employment after a Criminal Conviction — A Hope for Prospective Employees with Previous Criminal Records? An Analysis of O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC)

Author Simphiwe P Phungula

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town; LLB, LLM, PhD (UKZN)
Source: Industrial Law Journal, Volume 46 Issue 1, 2025, p. 59 – 72
https://doi.org/10.47348/ILJ/v46/i1a4

Abstract

Unfair discrimination is a historical and current issue facing South Africa that tends to reveal itself in the workplace. Since the dawn of South Africa’s democracy, the South African legislature has dynamically tried to suppress this negative force through the adoption of legislation, codes, rules, and regulations, which are designed to promote equal opportunity and fair treatment of individuals in employment. However, individuals with previous criminal records may still be excluded from employment in certain circumstances. In terms of the law, employers are free not to consider an employee for a position if having a clean criminal record is inherent to job requirements. The question to be asked is when will the employer be allowed to conduct a criminal background check and bar a prospective employee from being appointed to a job without violating the prohibition on unfair discrimination? This case note answers the question by analysing the competing interests of both the employer and employee and the application of law in the circumstances.

The importance of economy, commerce, legal certainty and socioeconomic development for promoting the constitutional vision

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

The importance of economy, commerce, legal certainty and socioeconomic development for promoting the constitutional vision

Authors: Fuaad Alie & Chris Pretorius

ISSN: 1996-2185
Affiliations: LLM Graduate, University of South Africa; Professor, Department of Private Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 1 – 40
https://doi.org/10.47348/SAMLJ/v36/i1a1

 Abstract

The importance of the economy in South African socioeconomic development and for achieving the objectives set by the constitutional vision, can never be underestimated. To understand the relationship that exists between the economy and socioeconomic development, the simple mechanics of how production, income and spending in a basic mixed economy operate are briefly explained. There is a significant relationship between the economy, commerce, socioeconomic development, legal certainty, and substantive equality all of which can conceivably work harmoniously together to create a truly egalitarian society. However, some key threats that are hindering the achievement of the constitutional vision are unemployment, poor economic growth, corruption within the private and public sectors, as well as the Covid-19 pandemic. The economy and commerce have a major role to play on socioeconomic development in South Africa, by contributing to socioeconomic development and reform and the longer-term development of an egalitarian society. To achieve the constitutional vision of creating an equal and prosperous South African society, both business and government have a very important role to play. Therefore, the important role of business and the commercial need for legal certainty in contracts is critical.

Situating liability for patent infringement by Artificial Intelligence Systems in South Africa

by | Dec 8, 2024 | SAMLJ, SAMLJ V36 I1

Situating liability for patent infringement by Artificial Intelligence Systems in South Africa

Authors: Tshimangadzo Donald Mukwevho & Desmond Osaretin Oriakhogba

ISSN: 1996-2185
Affiliations: Lecturer, University of Kwazulu-Natal; Associate Professor, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 41 – 58
https://doi.org/10.47348/SAMLJ/v36/i1a2

Abstract

South Africa remains the only country that has granted a patent in respect of an application that named an artificial intelligence (AI) system as the inventor. This follows the decision by the Companies and Intellectual Property Commission in 2021, granting Dr Stephen Thaler a patent over inventions created by his AI machine — Device for the Autonomous Bootstrapping of Unified Sentience (DABUS). This decision has subsequently received condemnation, as well as applause, from various scholars. Adding to the criticisms against granting patents with AI named as the inventor/s, it remains a question as to who should be held liable for patent infringement by AI systems, and if anyone is to be held liable, how the liability thereof should be assessed. This flows from the premise that the development, training, and the ‘inventive’ activities of AI inevitably involve access to patent-protected data or information for which authorisation from the patent owner may not have been obtained. Conducted through desktop research, and drawing from the delictual (tort) principle of causation, this article probes into and addresses questions around the liability for patent infringement by AI systems in South Africa.