Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

Author: Tebello Thabane

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 1, p. 155-183
https://doi.org/10.47348/SALJ/v143/i1a8

Abstract

This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual ‘acting in the public interest’ — an ‘ideological plaintiff’ — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.

Protection down the road: Car shapes and intellectual property law

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Protection down the road: Car shapes and intellectual property law

Authors: Gretchen Jansen & Dennis Wurm

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, Stellenbosch University; Research assistant and PhD student in Public Law and International Economic Law, Universität Siegen, Germany
Source: South African Law Journal, Volume 143 Issue 1, p. 184-214
https://doi.org/10.47348/SALJ/v143/i1a9

Abstract

The automotive industry is of growing importance in South Africa. To maintain the country’s appeal as an international business hub for foreign automakers, the law should provide sufficient protection for automakers with regard to the shape of their vehicles. This article considers the extent to which South African intellectual property law provides protection for the shape of a motor vehicle. The law is examined comparatively, with the approaches in the European Union and the United Kingdom investigated to determine whether South African intellectual property law meets international standards in this context. It is argued that the law of registered designs remains the primary method of protection for car shapes, but that trade mark law and copyright law can be developed to offer supplementary avenues to enhance protection in this area.

Continuity and change in global labour law

by | Jan 31, 2026 | ACTA, ACTA 2025

Continuity and change in global labour law

Author Simon Deakin

ISSN: 1996-2088
Affiliations: MA PhD (Cantab) PhD(hc) (Louvain-la-Neuve); Professor of Law, University of Cambridge
Source: Acta Juridica, 2025, p. 1-25
https://doi.org/10.47348/ACTA/2025/a1

Abstract

This article undertakes an analysis of the prospects for global labour law from the perspective of long-run capitalist dynamics associated with phases of industrialisation. The article argues that Britain’s early industrialisation owed much to legal institutions, including the poor law and factory legislation, which supported labour mobility and improvements in productivity. Labour standards constructed around this model achieved a global reach by the middle decades of the twentieth century. Although weakened during the period of neoliberal policy dominance which began in Europe and North America in the 1980s, these institutions have proved surprisingly resilient, and have been strengthened in certain regions. If neoliberalism is ending, and it is not yet clear what will replace it, it is possible to predict that labour law will continue to have a future in mediating the impacts of markets and technology on humans and nature.

Has the Labour Relations Act exceeded its shelf life?

by | Jan 31, 2026 | ACTA, ACTA 2025

Has the Labour Relations Act exceeded its shelf life?

Author André van Niekerk

ISSN: 1996-2088
Affiliations: BA LLB MA (Witwatersrand) LLM (Leicester); Judge of the Labour Appeal Court
Source: Acta Juridica, 2025, p. 26-48
https://doi.org/10.47348/ACTA/2025/a2

Abstract

Any retrospective assessment of the Labour Relations Act (LRA) must necessarily determine whether the Act has succeeded in meeting its stated objectives, which are the advancement of economic development, social justice, labour peace and the democratisation of the workplace. This article traces the history of the LRA, the draft Bill that formed the basis of its negotiation, and the consensus that emerged from that tripartite process. The article concludes that the LRA has failed to meet its stated objectives, largely on account of its users’ rejection of those parts of the Act that sought to supplement the prevailing adversarial nature of industrial relations with a consensus-seeking, consultative ‘second channel’. The rejection of those provisions invites a consideration of different means to achieve the LRA’s stated objectives. A reconsideration of the LRA is also warranted by assumptions made when the LRA was drafted 30 years ago that are no longer valid. In particular, the corporatist assumptions that inform the model of collective bargaining no longer pertain, nor does the conception of work, tied as it is to the common-law contract of employment. Fragmented trade union federations and employers’ organisations, persistent adversarialism, the emergence of new forms of work and a dispute resolution system under stress all call for a re-evaluation of key elements of the LRA. The LRA failed to meet the challenges of democratic South Africa’s entry into a competitive global economy, even though it was designed to do so. The question is whether the Act remains fit for purpose to meet the current challenges of a fragile domestic economy in an increasingly polarised world.

Whither employment (and labour law)?

by | Jan 31, 2026 | ACTA, ACTA 2025

Whither employment (and labour law)?

Authors Abigail Osiki & Nicola Smit

ISSN: 1996-2088
Affiliations: LLB (Ibadan) LLM PhD (Cape Town). Senior Lecturer, Faculty of Law, University of Canterbury; Research Fellow, Department of Mercantile and Labour Law, University of the Western Cape; BLC LLB (Pretoria) LLD (Johannesburg). Professor of Law and Dean, Faculty of Law, Stellenbosch University
Source: Acta Juridica, 2025, p. 49-88
https://doi.org/10.47348/ACTA/2025/a3

Abstract

The legal and economic world for which labour law was traditionally designed has largely disappeared in the twenty-first century. Although the goals and purposes of labour law have not changed, it is in danger of becoming obsolete for most working people as employment, work and workplaces have undergone fundamental shifts. This contribution considers the changes that have occurred in the world of work and their impact on labour law and regulation by asking what status employment or work should carry in the future to improve the dignity, rights and autonomy of those who need them most. In considering the past and present iterations of employment (and labour law), while considering future adaptation, the following aspects are considered: the changing nature and scope of employment, collective rights and related concepts, the implications of such changes, emerging collaboration between different fields of law and policy, and recommendations for regulation to ensure the continued influence of labour law and its associated legal constructs (such as ‘work’).

Is the common law of employment up to the task of regulating the world of work, today and into the future?

by | Jan 31, 2026 | ACTA, ACTA 2025

Is the common law of employment up to the task of regulating the world of work, today and into the future?

Authors Dennis Davis & Chris Todd

ISSN: 1996-2088
Affiliations: BCom LLB (Cape Town) MPhil (Cantab). Former Judge President of the Competition Appeal Court; Honorary Professor of Law, University of Cape Town, University of the Western Cape and University of the Witwatersrand; BA(Hons) (Cape Town) BA (Oxon). Partner, Bowmans
Source: Acta Juridica, 2025, p. 89-135
https://doi.org/10.47348/ACTA/2025/a4

Abstract

This article examines how the common law regulating employment has developed over the past three decades. It reflects on the most significant cases dealing with contracts of employment during that period and how the law has evolved through those cases. While our common law of employment remains closely linked to Roman-Dutch law, the impact of the introduction of statutory protection for employees and the judicial interpretation of the scope and application of employment statutes has, somewhat surprisingly perhaps, rendered the common law less flexible than the system that Roman lawyers devised in a very different context. The article assesses whether the common law has the tools that it needs to respond to a rapidly changing world of work, and examines how employment statutes have, in effect, operated to tether the common law and have been interpreted in a manner that inhibits further development of the common law. Looking forward, the article assesses what changes in statutory regulation may be necessary or most effective to ensure that constitutionally supported employment protections and minimum standards, which broadly reflect twentieth century global consensus, remain relevant in the future, in the world in which South African citizens are most likely to find themselves working over the next three decades. The article identifies a significant disjuncture between current legal regulation and the reality of evolving working relationships under an increasingly wide variety of contracts and forms of work. Global instruments regulating the world of work are in a state of rapidly evolving transition. The article suggests that the South African legislature needs to follow suit, or it may find activist judges stepping in to fill the void.

Effective workplace dispute resolution for the future

by | Jan 31, 2026 | ACTA, ACTA 2025

Effective workplace dispute resolution for the future

Authors Alan Rycroft & Christopher Albertyn

ISSN: 1996-2088
Affiliations: BA (Rhodes) LLB (Natal) LLM (London). Professor Emeritus, Faculty of Law, University of Cape Town; BA (Hons) (Witwatersrand) B.Proc (UNISA) LLB (Natal). Arbitrator and mediator, principally in Ontario, Canada
Source: Acta Juridica, 2025, p. 136-178
https://doi.org/10.47348/ACTA/2025/a5

Abstract

An efficient and cost-effective dispute system was a key aim in the drafting of the Labour Relations Act in 1994. In this contribution we consider whether this aim has been achieved. We look separately at the internal disciplinary process, CCMA arbitrations, the labour courts and the Constitutional Court. We include comparative insights from Canada. Looking ahead, we consider possible dispute resolution mechanisms in four diverse areas: AI and mediation, platform workers, workers in the informal economy, and supply chain disputes. Through this review we make suggestions for the way forward.

Whither dismissal law?

by | Jan 31, 2026 | ACTA, ACTA 2025

Whither dismissal law?

Authors Rochelle le Roux & Peter le Roux

ISSN: 1996-2088
Affiliations: BJuris LLB (Port Elizabeth) LLM (Stellenbosch) PGDip (Employment Law and Social Security) (Cape Town) LLM (Anglia Ruskin) PhD (Cape Town). Professor, Faculty of Law, University of Cape Town; BJuris (Rand Afrikaans) LLM (South Africa) LLM (London) Executive Consultant at ENSafrica
Source: Acta Juridica, 2025, p. 178-212
https://doi.org/10.47348/ACTA/2025/a6

Abstract

The 30th anniversary of the enactment of the Labour Relations Act 66 of 1995 (LRA) provides a useful opportunity for reassessing the dismissal law established by the Act. This article examines the state of dismissal law with reference to three key features: the labour dispute resolution regime created by the LRA; the role of the common law in dismissal matters; and the current legislative location of dismissal based on unfair discrimination. The article also questions the continued validity of some of the modalities in the LRA supporting these features. While concluding that there is nothing wrong with the fundamentals of current dismissal law, both in respect of its treatment of substantive and procedural fairness, and in respect of the dispute resolution model that supports it, the article argues that the changing nature of employment and the pressures on the dispute resolution institutions created by the LRA require a change to some of the modalities of dismissal law. Taking a long view – 30 years – of dismissal law, the article makes tentative proposals that might make dismissal law more agile and responsive to the changing nature of employment.

Through the lens of an idealist: Imagining the position of strike law in South Africa by the year 2055

by | Jan 31, 2026 | ACTA, ACTA 2025

Through the lens of an idealist: Imagining the position of strike law in South Africa by the year 2055

Author Mlungisi Tenza

ISSN: 1996-2088
Affiliations: LLB LLM LLD (South Africa); Associate Professor, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2025, p. 213-242
https://doi.org/10.47348/ACTA/2025/a7

Abstract

The Constitution guarantees workers the right to strike. Workers use strike action as a bargaining tool when employers fail to meet their demands or address their grievances in the workplace. The right to strike and the strike itself have helped workers to achieve various things in the workplace, including improved working conditions and increased wages. Exercising the right to strike has resulted in not only positive acts that benefit workers, but also in the loss of employment through retrenchments due to protracted strikes; in addition, many workers have lost their lives due to strikes becoming violent. The struggle to liberate workers from the shackles of poverty, inequality, the ever-increasing rate of unemployment and differences in pay continues. This means that the weaponry of strike action is still necessary if South Africa wants to address the plight of workers. This article examines whether the law relating to strikes in the next 30 years will still be relevant in the labour relations environment in South Africa. I argue that strikes are becoming less popular, and very few workers or employees will continue to use them due to changes in the way that business is conducted. This is further affected by the increasing use of technology, including the introduction of gig work and apps to perform work. In addition, trade unions usually convene strikes and recruit people who are in formal employment; however, by 2055, the number of people joining unions will have decreased as few people will be in formal employment. Workers will mostly rely on the internet to voice their grievances against employers, and the latter, fearing reputational damage, may succumb to employee demands. This will have the same outcome as if workers were to go on strike. The result will be a situation where an individual worker and their employer will decide on their terms and conditions of work. The employer alone will decide on wage increases or other matters affecting workers, because collective bargaining will play a less important role.