Case Notes: The Correctness Standard of Review

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Case Notes: The Correctness Standard of Review

Author Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Senior counsel at the Johannesburg Bar; Adjunct Professor of Law at Nelson Mandela University
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 724 – 733
https://doi.org/10.47348/ILJ/v44/i2a3

Abstract

The traditional conceptualisation is that an appeal is about the correctness of the decision, while a review is about its justifiability. However, there are many decisions and actions by commissioners of the Commission for Conciliation, Mediation and Arbitration that must meet the standard of correctness and are reviewable if they do not. This is known as correctness review. This note examines when correctness review applies, and when it does not.

Case Notes: Restraint of Trade Clauses: Anything New from the Courts?

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Case Notes: Restraint of Trade Clauses: Anything New from the Courts?

Author Monray Marsellus Botha

ISSN: 2413-9874
Affiliations: Professor, Private Law, Faculty of Law, University of Johannesburg
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 734 – 746
https://doi.org/10.47348/ILJ/v44/i2a4

Abstract

Restraint of trade agreements are not new. Recently the courts have been faced with deciding various challenging issues in this respect, such as whether a pandemic has an impact on the enforceability of a restraint, and whether a restraint of trade should be amended based on public policy which imports values of fairness, reasonableness, and justice. This note revisits the general principles governing restraint of trade agreements as a background to examining the latest trends in such cases.

The Employment Equity Amendment Bill B14B – 2020: Innovating towards Equity or Kicking the Can down the Road?

by | Jan 13, 2024 | ILJ, ILJ V44 I1

The Employment Equity Amendment Bill B14B – 2020: Innovating towards Equity or Kicking the Can down the Road?

Author Debbie Collier

ISSN: 2413-9874
Affiliations: Professor of Law, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 1 – 27
https://doi.org/10.47348/ILJ/v44/i1a1

Abstract

The Employment Equity Amendment Bill introduces significant changes to the regulatory framework for affirmative action by, among other amendments, shifting the responsibility for determining employment equity targets from workplace to sectoral level. It also operationalises s 53 of the Employment Equity Act (EEA) and employers will need a certificate of compliance from the Minister confirming compliance with the EEA, including the sector targets, before being permitted to contract with the state.
Notwithstanding merit in the idea of a sectoral (contextual) approach to affirmative action and the value of incentivising compliance, considered in terms of its provisions and omissions the Bill is found wanting. The EEA is a fundamental tool in the struggle against workplace discrimination and systemic inequality — crucial for transformation — but the design of the Bill suggests a high-handed and partisan approach and a missed opportunity to adjust course and affirm and implement international human rights law and principles. However, this is a qualified and incomplete assessment, as the sectoral numerical targets have yet to be published, and it remains to be seen whether these, and the associated framework, will reflect a more nuanced and context sensitive approach to the design and implementation of affirmative action measures than currently anticipated. That would be a most welcome development.

Towards the Practical Realisation of the Concept of Equal Pay for Equal Work in Ghana: Some Comparative Lessons from South Africa and the United Kingdom

by | Jan 13, 2024 | ILJ, ILJ V44 I1

Towards the Practical Realisation of the Concept of Equal Pay for Equal Work in Ghana: Some Comparative Lessons from South Africa and the United Kingdom

Authors Theophilus Edwin Coleman & Letlhokwa George Mpedi

ISSN: 2413-9874
Affiliations: Postdoctoral Research Fellow, Centre for International and Comparative Labour and Social Security Law, Faculty of Law, University of Johannesburg, South Africa; Research Associate, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg, South Africa; Professor of Labour and Social Security Law and Vice-Chancellor and Principal (Designate), University of Johannesburg, South Africa
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 28 – 50
https://doi.org/10.47348/ILJ/v44/i1a2

Abstract

The Constitution of Ghana and the Labour Act provide that all workers in Ghana are entitled to equal pay/remuneration for equal work. The practical realisation of equal pay for equal work is also a global goal embodied in key international instruments. Notwithstanding this, the meaning and scope of the concept have proven somewhat difficult to understand. Some countries have promulgated legislation and statutory guidelines to provide clarity. In Ghana, the operational aspects of the concept have not yet been fully explored. In addition, Ghanaian courts have not been approached to pronounce on its scope. While the government of Ghana has introduced some wage determination structures to give effect to the concept, unfortunately these apply only to public-sector workers. This article seeks to advance arguments on the practical realisation of equal pay for equal work or work of equal value in the Constitution and Labour Act. It discusses the meaning of the concept under international law. It also draws some legislative and judicial lessons from the legal position in South Africa and the United Kingdom on the various approaches to equal pay claims. The article suggests that Ghana take legislative steps to provide clarity and a comprehensive framework to govern the various aspects of equal pay for equal work and work of equal value.

Access to the Labour Courts in Israel during the Covid-19 Crisis

by | Jan 13, 2024 | ILJ, ILJ V44 I1

Access to the Labour Courts in Israel during the Covid-19 Crisis

Authors Lilach Lurie & Reut Shemer Begas

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Labour Studies, Tel Aviv University; Registrar, Tel Aviv Labour Court
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 51 – 70
https://doi.org/10.47348/ILJ/v44/i1a3

Abstract

The article examines access to the labour courts in Israel during the Covid-19 pandemic, focusing on the first year of the crisis. It shows that the labour courts managed to deliver the same number of judgments and decisions in 2020 as they did in previous years. In order to keep open during the crisis and to enable access to justice the courts made use of three main tools: (a) technological tools, (b) awarding precedence to the most important and urgent proceedings, and (c) social distancing regulations.

Notes: Strikingly Inappropriate — National Union of Metalworkers of South Africa obo Aubrey Dhludhlu & others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30; (2022) 43 ILJ 2269 (CC)

by | Jan 13, 2024 | ILJ, ILJ V44 I1

Notes: Strikingly Inappropriate — National Union of Metalworkers of South Africa obo Aubrey Dhludhlu & others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30; (2022) 43 ILJ 2269 (CC)

Author Martin Brassey SC

ISSN: 2413-9874
Affiliations: Member of the South African Bar; Visiting Professor, University of Cape Town
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 71 – 82
https://doi.org/10.47348/ILJ/v44/i1a4

Abstract

In this note, I criticise the approach taken by the Constitutional Court in concluding that the employer acted unfairly in dismissing workers who took part in a march that culminated in a brutal attack on a senior manager. If the court had considered the facts in their totality, it could have been expected to find that the employees had committed acts of misconduct serious enough to warrant dismissal. Instead, it believed it could look no further than the ‘charge’, one of assault, that had been levelled by the employer. Examining the facts through the lens of a doctrine (common purpose) that is peculiar to criminal law, the court controversially concluded that no complicity in the offence could be inferred.

Notes: High Heels in the Workplace — A Health Hazard or a Symbol of Femininity? Observations on Appearance Regulation in Mofokeng v CCMA & Others 2022 ZALCJHB 169; (2022) 43 ILJ 2531 (LC)

by | Jan 13, 2024 | ILJ V44 I1

Notes: High Heels in the Workplace — A Health Hazard or a Symbol of Femininity? Observations on Appearance Regulation in Mofokeng v CCMA & Others 2022 ZALCJHB 169; (2022) 43 ILJ 2531 (LC)

Authors Aisha Adam & Debbie Collier

ISSN: 2413-9874
Affiliations: PhD Candidate, Faculty of Law, University of Cape Town; Professor of Law, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 82 – 92
https://doi.org/10.47348/ILJ/v44/i1a5

Abstract

The case note considers the extent to which employers may regulate the appearance of employees and observes, as affirmed in the case, that appearance regulation is a matter of mutual interest; an employee’s freedom of expression exercised within the limits of the law may protect the employee from allegations of insubordination; context is of importance in determining the reasonableness of such regulation; and an inherent requirement of the job is a defence for the employer, but should be interpreted in a narrow manner. The article concludes by emphasising the potential for appearance regulation to constitute an abuse of power: hence such regulation must be legitimate and reasonable.

The inadequacy of copyright-related provisions in economic partnership agreements between the European Union and the African, Caribbean and Pacific regional groups from an educational perspective

by | Jan 13, 2024 | SAIPLJ, SAIPLJ 2023

The inadequacy of copyright-related provisions in economic partnership agreements between the European Union and the African, Caribbean and Pacific regional groups from an educational perspective

Author James David

ISSN: 2521-2591
Affiliations: Candidate attorney at Moore Attorneys Incorporated
Source: South African Intellectual Property Law Journal, 2023, p. 1 – 15
https://doi.org/10.47348/SAIPL/v11/a1

Abstract

In 2000, the European Union (EU) undertook to enter into economic partnership agreements (EPAs) with the African, Caribbean and Pacific (ACP) regional groups with the intention of promoting development by implementing tariff-free trade structures with ACP states. A number of these agreements, once entered into, contained provisions regarding intellectual property rights and technology transfer. However, the provisions in these agreements regarding intellectual property protection and enforcement appeared to oblige contracting states to follow the directives as espoused in pre-existing intellectual property agreements. This contribution argues that those agreements do not adequately address educational concerns in developing ACP states, and that, if the EU is concerned about the long-term development of ACP states and regional groups, it should take adequate steps to facilitate knowledge transfer on an equitable basis through copyright mechanisms.

Shifting digital media ecologies and how copyright law should adjust and adapt to journalism

by | Jan 13, 2024 | SAIPLJ, SAIPLJ 2023

Shifting digital media ecologies and how copyright law should adjust and adapt to journalism

Author Brian Hungwe

ISSN: 2521-2591
Affiliations: PhD Candidate, School of Law, University of Witwatersrand
Source: South African Intellectual Property Law Journal, 2023, p. 16 – 41
https://doi.org/10.47348/SAIPL/v11/a2

Abstract

Digital Age misappropriation and plagiarism of published online news content by some South African media proprietors are negatively affecting professionalism and integrity in journalism. Such infringements invariably lead to great tension, harmful competition patterns and dwindling revenues. Frequently, digital news misappropriation creates factual distortions, impairing the democratic functions of journalism and healthy national discourse motivated by legitimate public interest considerations. A 2019 Reuters Institute Digital News Report revealed that, globally, South Africans spend the greatest number of hours browsing online, with 36% of the population enjoying sharing news content, while 40% enjoy commenting on news via social media or news websites. While the Digital Age has generated many forms of active players in journalism, this paper is limited to digital infringement conflicts and contestations between accountable and established media proprietors or competitors. This qualitative contribution proposes that media proprietors collectively seek an alternative dispute resolution approach to copyright infringements through a comprehensive ‘Media Arbitration Copyright Infringements Code’ with incorporated ‘Hot News Misappropriation Doctrine’ provisions to regulate the conduct of the media and to address proliferating digital infringements. The Media Code should also guide the proposed ‘Media Copyright Tribunal’ operating within a commercial arbitration framework in dispute adjudication and resolution. This paper argues that the Media Code with the Misappropriation Doctrine is a more viable approach for addressing media copyright disputes because it largely protects facts contained in published news content. Furthermore, a Media Code that is drafted addressing media copyright digital infractions using the ethical benchmarks set by the ‘Press Code of Ethics and Conduct for South African Print and Online Media’ editorial guidelines interpreted through a flexible informal commercial arbitration framework that expedites dispute resolution is desirable. This paper is largely concerned with the court’s findings in Moneyweb (Pty) Limited v Media 4 Limited and Another, and the fact that it took about three years for the dispute to be resolved. Moreover, this paper argues that the current Copyright Act 98 of 1978 is less effective in dealing with the ethical quandary faced by journalism in the Digital Age.

Navigating the complexities of the adaptation right in copyright law: Addressing ambiguities, gaps and the need for reforms in South Africa

by | Jan 13, 2024 | SAIPLJ, SAIPLJ 2023

Navigating the complexities of the adaptation right in copyright law: Addressing ambiguities, gaps and the need for reforms in South Africa

Author Lucinda Kok

ISSN: 2521-2591
Affiliations: Lecturer, University of Pretoria
Source: South African Intellectual Property Law Journal, 2023, p. 42 – 71
https://doi.org/10.47348/SAIPL/v11/a3

Abstract

As a pervasive feature of modern society, the adaptation right in the context of infringement and fair dealing has frequently been a subject of heated debate for several years. However, the current Copyright Act 98 of 1978 does not adequately address either aspect. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application in the context of the various forms of adaptation set out in the Copyright Act (ie arrangement, transcription, translation and transformation) remain largely undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable uncertainty. Consequently, there are numerous gaps in South Africa’s legal system concerning adaptations and their role in legal proceedings. This is exacerbated by the absence of case law meant to provide clarification. Additionally, the exceptions and restrictions associated with the adaptation right are extremely limited. Blind SA v Minister of Trade, Industry, and Competition and the almost decade-long debate about the Copyright Amendment Bill indicate a need for reform in South Africa’s legal system concerning adaptations and their role in legal proceedings.