Clearing the interpretative air – The need to make good (air quality) law and to make good law work

by | Mar 17, 2025 | SLR, SLR V35 I2

Clearing the interpretative air – The need to make good (air quality) law and to make good law work

Author: Jenny Hall

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 144-177
https://doi.org/10.47348/SLR/2024/i2a3

Abstract

A corollary of the environmental rule of law requirement that good laws must be passed is that these laws must also be implemented effectively. Effective implementation frequently relies on good bureaucratic decision-making which can be challenging where decisions are non-routine and complex. This challenge is evident in the practical application of so-called “listed activities”, a widely used approach in pollution and waste management regulation to trigger an obligation to obtain an environmental authorisation or licence to undertake the listed activity. When courts hear disputes on the design and implementation of these listed activities, they can play a valuable role in providing guidance on sound decision-making approaches, and course-correcting existing approaches if necessary. For the court’s impact to be realised optimally, however, it is important that judicial decision making itself is based on sound reasoning and that it contains an element of predictability which follows from the employment of a consistent approach to legislative interpretation. For the interpretation of environmental legislation, this contribution proposes a reframing of the purposive interpretative approach set out in the much-cited Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) that aims to achieve what I call ‘substantive ecological purposivism’. It examines three judgments on listed activities passed in terms of the National Environmental Management: Air Quality Act 39 of 2004 through the lens of this approach and points out both inconsistencies in the three judgments as well as how the decisions in some instances could have been more closely aligned with the environmental objectives of legislation if the systematic employment of a substantively ecological purposive approach had been adopted.

Not “radical” enough: Disrupting the narrative of Ermelo’s grand transformative potential in public basic education

by | Mar 17, 2025 | SLR, SLR V35 I2

Not “radical” enough: Disrupting the narrative of Ermelo’s grand transformative potential in public basic education

Author: Lorette Arendse

ISSN: 1996-2193
Affiliations: LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 178-194
https://doi.org/10.47348/SLR/2024/i2a4

Abstract

The Constitutional Court decision in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC) is often celebrated in education law jurisprudence. The Constitutional Court’s call for the radical transformation of public education is zealously repeated in academic discourse. In particular, the apex Court is lauded for the formulation of principles applicable to school governing bodies on how to develop constitutionally compliant language policies in terms of section 29(2) of the Constitution of the Republic of South Africa, 1996. This provision guarantees the right to education in the language of choice in public educational institutions subject to the criterion of reasonable practicability. In the subsequent decision of Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2019 12 BCLR 1479 (CC), the Constitutional Court evaluated the constitutionality of another language policy, this time in the higher education context, but adopted a markedly different approach to the interpretation of section 29(2). Using a particular conceptualisation of transformation as theoretical lens and by contrasting the judicial approaches in the two Constitutional Court judgments, this contribution advances the idea that the Court in Ermelo was myopic in its approach by failing to recognise that some school governing bodies reinforce systemic racial inequality in public schools through the adoption of language policies.

The divergent approaches of the Constitutional Court to the right to life and ubuntu and the implications for civil society

by | Mar 17, 2025 | SLR, SLR V35 I2

The divergent approaches of the Constitutional Court to the right to life and ubuntu and the implications for civil society

Authors: Keith Matthee and Shaun de Freitas

ISSN: 1996-2193
Affiliations: BA LLB BD; BProc LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 2, 2024, p. 195 – 219
https://doi.org/10.47348/SLR/2023/i2a5

Abstract

There are indications of an unduly deferential attitude towards the justices of the Constitutional Court when they pronounce on profound moral issues which deeply affect the moral fabric of South African society. A key to addressing this deference is to demonstrate the divergent approaches of the Constitutional Court when making such pronouncements. An awareness of these differing approaches has the potential to influence civil society to participate confidently in the process of giving the Constitutional text representative forms of meaning and, in the process, of buttressing democracy. As an illustration of the divergencies stemming from the Constitutional Court regarding fundamental moral matters, the most important of all the rights in the Constitution of the Republic of South Africa, 1996 has been chosen, namely, the right to life, more specifically pertaining to the death penalty and abortion. Accompanying this is a critical investigation into a foundational hermeneutic chosen by the Constitutional Court when giving content to the right to life, namely, ubuntu. Also, naturally emanating from this contribution is the advancement of right to life jurisprudence in South Africa.

The present as history: Workers’ struggles and the law during and after apartheid

by | Mar 16, 2025 | ACTA, ACTA 2024

The present as history: Workers’ struggles and the law during and after apartheid

Authors Kally Forrest & Edward Webster

ISSN: 1996-2088
Affiliations: Former trade unionist and editor of the South African Labour Bulletin; Associate of the Southern Centre for Inequality Studies, and the Society, Work and Politics Institute; Fellow at the Johannesburg Institute for Advanced Studies; Edward Webster passed away on 6 March 2024. At the time, he was a Research Professor at the Southern Centre for Inequality Studies and held the
position of Professor Emeritus in the School of Social Sciences at the University of the Witwatersrand
Source: Acta Juridica, 2024, p. 1-31
https://doi.org/10.47348/ACTA/2024/a1

Abstract

Black workers in South Africa in the 1970s fought successfully for their right to be included in the law. Through militant struggles, and with the aid of pioneering lawyers like Halton Cheadle, they produced an inclusive Labour Relations Act (LRA) and the attendant Basic Conditions of Employment Act. Through its independent power base connected to the shopfloor, the labour movement gave trade unions the capacity to mobilise and restrain members, which they used to negotiate to expand legal rights and organisational space and pursue worker control at workplace and industry levels. However, the LRA, and its employer–employee binary, marginalises informal workers, and these workers are now waging a battle for recognition. The struggle for informal workers’ rights unfolds in a more challenging environment than the 1970s, and no significant changes in law have emerged in the last twenty years of organising. This makes redefining the LRA complex, as informal workers may be own account workers and micro-employers. Labour law is not responsive to the needs of workers in the informal economy and an experimental environment is encouraged. The world of work has changed to such an extent that perhaps we now need the equivalent of the Wiehahn Commission, which transformed the world of labour in the 1980s.

An elusive pursuit: Challenging invalid dismissals – then and now

by | Mar 16, 2025 | ACTA, ACTA 2024

An elusive pursuit: Challenging invalid dismissals – then and now

Author Paul Benjamin

ISSN: 1996-2088
Affiliations: BA LLB (UCT) LLM (Warwick); Director, Cheadle Thompson & Haysom Inc; Extraordinary Professor, Faculty of Law, University of the Western Cape
Source: Acta Juridica, 2024, p. 32-54
https://doi.org/10.47348/ACTA/2024/a2

Abstract

The independent trade union movement that emerged from the 1973 Durban strikes developed legal strategies to protect their members, who were primarily African workers excluded from participation under the Industrial Conciliation Act 28 of 1956. Chief among these strategies was the institution of litigation seeking to nullify dismissals that violated statutory victimisation provisions in those laws that covered African workers. The apartheid-era bench was largely hostile to this approach, and it was not until the 1982 full bench decision in National Union of Textile Workers v Stag Packings that orders of nullity and reinstatement became a possibility. However, by this time the powers of the industrial court, which had been established in 1980, had been extended to include status quo orders and the unions were able to achieve unprecedented protection for their members as the industrial court asserted its unfair labour practice powers. This article explores the legal strategies reflected in the litigation and engaged scholarly writing that gave rise to this important judgment and comments on its significance for contemporary labour law in South Africa.