Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

Authors Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 749 – 770

Abstract

Section 252A of the Criminal Procedure Act allows law enforcement officers or their agents to use traps or to engage in undercover operations in order to prevent, detect or investigate the commission of an offence. Evidence obtained through such traps or undercover operations is admissible. Since the coming into force of s 252A, South African courts have developed a rich jurisprudence on the issue of traps and undercover operations. Most of this jurisprudence has developed within the context of criminal law. However, since 2000 there has been a consistent trend on the part of the Labour Court, the Commission for Conciliation, Mediation and Arbitration and bargaining councils, to assess the admissibility of evidence obtained through entrapment or undercover operations in employment matters on the basis of s 252A. This article argues that relying on s 252A to assess the admissibility in employment matters of such evidence is questionable. The author recommends that in employment disputes, the admissibility of evidence obtained through traps should be assessed on the basis of the principles that existed before s 252A was enacted and that consideration should be given to the drafting of employment-specific legislation to regulate the process.

Privacy in the workplace

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Privacy in the workplace

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 725 – 748

Abstract

The legitimacy and fairness of managerial practices which intrude on private actions, thoughts, and opinions are considered through two separate concepts which make up privacy: freedom from intrusion and protection for autonomy. While the Constitutional Court has acknowledged privacy in the truly personal realm, it has stated that as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly. The extent of this shrinkage is assessed looking at seven issues: (1) medical, alcohol and drug testing, (2) body, bag, locker and office searches, (3) camera surveillance, (4) polygraph testing, (5) freedom of speech and electronic privacy, (6) the privacy of personal data, and (7) appearance regulation. The assessment suggests that in most of these areas of contestation adjudicators have not automatically deferred to managerial prerogative but instead have recognised privacy rights, particularly in the sense of autonomy, to uphold the right to dignity. At the same time there is a recognition that privacy, like all constitutional rights, can be limited if it is reasonable and justifiable to do so, usually where that is in the public interest.

Interdicting protected strikes on account of violence

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Interdicting protected strikes on account of violence

Authors Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa; Adjunct Professor of Law at Nelson Mandela University
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 703 – 724

Abstract

Strike violence is an abuse of the constitutional right to strike and amounts to collective brutality and economic duress. This article examines the difficult question whether, in the absence of a legislative amendment expressly affording it the power to do so, a protected strike can be interdicted by the Labour Court on account of strike violence. There are two judgments in which the court has indicated a preparedness to grant such an interdict: Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC), and National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits & Allied Workers & others (2016) 37 ILJ 476 (LC). But a final interdict is yet to be granted on this basis. In order for the court to be empowered to grant such an interdict, the violence must either have caused the strike to lose its protected status or have caused it no longer to qualify as a ‘strike’ as defined in s 213 of the Labour Relations Act 66 of 1995. Arguments in support of both constructions are advanced.

International developments in labour law in the last 20 years

by | Oct 4, 2019 | ILJ, ILJ V39 I2

International developments in labour law in the last 20 years

Authors Manfred Weiss

ISSN: 2413-9874
Affiliations: Professor, Institute for Labour Law, Goethe University, Frankfurt
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 693 – 702

Abstract

Developments in international labour law in the last two decades evince both positive and negative aspects. The ILO declaration of 1998 is an ambiguous innovation. It has raised public attention in respect of core labour rights thus compensating for the low rate of ratification of such rights. But it has also introduced a problematic hierarchy of standards and an ongoing and ever increasing soft law approach. The ILO has finally extended its activities to the informal sector, but has not yet developed a satisfactory policy in this respect. The conflict over the mandate of the ILO might further weaken its already rather inefficient enforcement machinery. The example of global supply chains shows that fragmented and limited regulatory attempts arise only in reaction to shocks (for instance, the Rana Plaza tragedy), and that comprehensive regulation by enforceable hard law is resisted by all the countries whose multinational enterprises (MNEs) profit from the exploitation of workers in developing countries. Soft law instruments prevail. Private actors succeed only to a very limited extent in compensating for the deficiencies in the ILO’s and UN’s regulatory machinery. The MNE codes of conduct have proved to be rather inefficient instruments, mainly used for marketing purposes. More promising are the International Framework Agreements.