Analysis of the Effect of Artificial Intelligence on Employment Relationships in South Africa: Ethical Implications for Workers’ Rights, Privacy and Policy Frameworks

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

Analysis of the Effect of Artificial Intelligence on Employment Relationships in South Africa: Ethical Implications for Workers’ Rights, Privacy and Policy Frameworks

Authors Professor Franaaz Khan & Kirstin Hagglund

ISSN: 2413-9874
Affiliations: rofessor, Department of Private Law, University of Johannesburg; LLB, LLM, PhD (UKZN); LLD Candidate, Stellenbosch University; LLB, LLM (cum laude)
Source: Industrial Law Journal, Volume 46 Issue 1, 2025, p. 1 – 28
https://doi.org/10.47348/ILJ/v46/i1a1

Abstract

The sharp rise of artificial intelligence (AI) has dramatically changed the employer and employee relationship. The advantages are, for example, an increase in efficiency and improved decision making. However, it has also given rise to challenges relating to ethical and policy issues, primarily regarding privacy, bias, accountability, and job safety. AI systems rely on datasets. These datasets include sensitive personal information that can raise privacy concerns within a working environment. Another concern is bias in AI algorithms, which can unwittingly perpetuate discrimination. This may result in unfair outcomes in respect of hiring, performance assessments, and promotions that would solidify disparities in the workplace. In addition, the computerisation of tasks through AI poses threats to job security, as it could disrupt workers’ stability. These ethical concerns compel employers and policymakers to alleviate the negative consequences of AI. This article addresses the ethical implications of AI in the workplace, with a focus on South African labour law. It discusses current relevant legislation, such as the Labour Relations Act, to assess its efficacy in addressing AI-related issues as well as the new National Artificial Intelligence Framework Policy 2024. A comparative analysis of AI legislation in the European Union and United States is also included in which best practices are identified. The article suggests a balanced regulatory approach that supports innovation while providing clear guidelines to protect employee rights and maintain fairness.

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.

Exploring South African tax consequences of compensation received by amateur rugby players

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

Exploring South African tax consequences of compensation received by amateur rugby players

Authors: Danielle van Wyk & Cara Thiart

ISSN: 1996-2185
Affiliations: Senior Lecturer in Accounting at the School of Accountancy, Faculty of Economic and Management Sciences, University of Stellenbosch; Lecturer in Taxation at the School of Accountancy, Faculty of Economic and Management Sciences, University of Stellenbosch
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 59 – 86
https://doi.org/10.47348/SAMLJ/v36/i1a3

Abstract

Both professional and amateur rugby players participate in community rugby. There is currently no guidance in the South African literature that expressly addresses the possible tax consequences of compensation received by amateur rugby players, if any. The objective of this article is therefore to explore the potential tax consequences of such compensation. The research approach entails an exploratory study, adopting a qualitative research approach in the form of an extensive literature review and an international comparative analysis. The study provides contradictory insights on the common perception that compensation received by amateur rugby players has no tax implications in South Africa. The study found that contracted amateur rugby players are considered employees of community rugby clubs and their compensation, depending on the nature, is in most instances taxable. Non-contracted amateur rugby players whose compensation consists of only the reimbursement of bona fide expenses are not considered employees of community rugby clubs, although reimbursements received may be subject to taxation. The findings are compared to current taxation practices of sports players in Australia, New Zealand, Singapore, and the United Kingdom. The research is valuable to amateur rugby players and community rugby clubs to ensure tax compliance and improved compensation practices.

The application of section 8c of the Income Tax Act 58 of 1962 in the context of trust structures

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

The application of section 8c of the Income Tax Act 58 of 1962 in the context of trust structures

Authors: Lumen Moolman & Riaanj Wessels

ISSN: 1996-2185
Affiliations: Partner, Webber Wentzel; Senior lecturer, Department of Accountancy, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 87 – 111
https://doi.org/10.47348/SAMLJ/v36/i1a4

Abstract

Broadly, section 8C of the Income Tax Act 58 of 1962 seeks to tax directors and employees at revenue rates on certain amounts arising in the context of the ownership of shares or instruments deriving their value from shares (ie, ‘equity instruments’ as defined in section 8C). Paragraph (c) of the ‘equity instrument’ definition was introduced into section 8C(7) with the purpose of ensuring that employees cannot avoid the consequences of section 8C by interposing an intermediary entity between themselves and the shares to which their incentives or remuneration are linked. In terms of paragraph (c) of the ‘equity instrument’ definition, the ambit of section 8C was extended to include ‘any contractual right à the value of which is determined directly or indirectly with reference to a share’. This study considered the application of paragraph (c) of the ‘equity instrument’ definition in the context where an employee receives a contractual right, the value of which is derived from shares as well as non-share-related assets. Based on the wording of section 8C, read in the overall context and purpose of the provision, an interpretation where section 8C applies either fully to a contractual right (where the majority of the assets are shares) or not at all (where the minority of the assets are shares) seems to best marry all the relevant factors.

Case note: Circumventing section 7(8)(a)(i) of the Divorce Act 70 of 1979 and section 37d of the Pension Funds Act 24 of 1956 through strategic resignation: CNN v NN2023 (5) SA 199 (GJ)

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

Case note: Circumventing section 7(8)(a)(i) of the Divorce Act 70 of 1979 and section 37d of the Pension Funds Act 24 of 1956 through strategic resignation: CNN v NN2023 (5) SA 199 (GJ)

Authors: Tumo Maloka & Koma Ramontja

ISSN: 1996-2185
Affiliations: Professor at University of Pretoria; PhD Candidate—National University of Lesotho
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 112 – 124
https://doi.org/10.47348/SAMLJ/v36/i1a5

Abstract

None

Case note: The value of characterisation: Competition Commission v Irwin & Johnson & another (2022) 2 CPLR 26 (CAC)

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

Case note: The value of characterisation: Competition Commission v Irwin & Johnson & another (2022) 2 CPLR 26 (CAC)

Author: Damian Schmidt

ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 125 – 134
https://doi.org/10.47348/SAMLJ/v36/i1a6

Abstract

None