Browsing by Author "Loots, Barbara Evelyn"

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    Geslag en Regstellende Aksie in die Werkplek
    (Stellenbosch : University of Stellenbosch, 2005-03) Loots, Barbara Evelyn; Garbers, C.; University of Stellenbosch. Faculty of Law. Dept. of Mercantile Law.
    The concept of affirmative action, in contrast to discrimination, does not have a universal uniform meaning. On the one hand affirmative action can be seen as an attempt to promote equal opportunities for individuals or groups previously disadvantaged by discrimination. On the other hand, its application is controversial when black people, women and disabled people are given preference, for example, when decisions are made that preclude the appointment of better-qualified candidates. Affirmative action therefore has pros and cons, depending on the approach adopted. In South Africa affirmative action, as defined in s 15 of Employment Equity Act 55 of 1998 (EEA), is seen as a measure that ensures equal employment opportunities and equitable representation of suitably qualified people from designated groups. Affirmative action thus enjoys legislative recognition and is judicially developed by the courts. Nonetheless the concept is problematic. A specific concern is the fact that the meaning of affirmative action is even more elusive when the conceptual relationship to discrimination and equality is examined in an effort to identify its theoretical foundation. Affirmative action is aimed at pursuing working conditions that promote a real, and not just theoretical, realisation of rights. It focuses on addressing the burden of discrimination, which is still borne by certain groups in society. In Harmse v City of Cape Town [2203] 6 BLLR 557 (LC), the court found that the broader idea of constitutional equality implies that the elimination of unfair discrimination includes affirmative action. The court based its reasoning on s 9(2) of the equality clause of the Constitution, wherein provision is made for measures, such as affirmative action, that are “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination…” In Dudley v City of Cape Town [2004] 5 BLLR 413 (LC) the court found that the EEA distinguishes between the prohibition of unfair discrimination and affirmative action, as contained in chapters II and III of the Act, regarding approach, aim and application. This however does not imply that the two concepts are in no way connected. Another area of concern relates to doubts surrounding the effectiveness of affirmative action. The gender gap in the workplace becomes apparent when the labour market composition is taken into consideration. This emphasises the fact that affirmative action is not accomplishing sufficient transformation to further equality in the workplace. The origin of the problem lies in the fact that the impact of affirmative action depends on the approach to equality (be it formal equality, equality of opportunities or substantive equality) that it is designed to promote. Another affirmative action dilemma is the problem of enforcement of measures of this nature. Other alternatives, such as diversity management where both the employer and the employees benefit, should possibly be considered as a method of effectively empowering women to ensure that they can compete successfully with men in the labour market. Diversity management ultimately appears to have a social, as well as an economic advantage in the development of equitable representation of disadvantaged groups in the labour market.
  • Thumbnail Image
    Item
    Public employment and the relationship between labour and administrative law
    (Stellenbosch : University of Stellenbosch, 2011-03) Loots, Barbara Evelyn; Garbers, C. J.; Quinot, Geo; University of Stellenbosch. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: The focus of this study is the rights-based normative overlap of labour and administrative law in public employment. As the judiciary appeared to be unable to agree on a unified approach to the application of the rights to fair labour practices and just administrative action to public employment, it was clear that the complexity and multi-dimensional character of the debate required analysis of existing approaches to the regulation of the public employment relationship. The following initial research question was formulated: To what extent does (and should) the constitutionalised rights to fair labour practices (s 23) and just administrative action (s 33) simultaneously find application in the regulation of public employment relationships? In answering this question, certain realities had to be acknowledged, the most important being that the debate in question jurisprudentially revealed itself to be a jurisdictional turf-war between the Labour and High Courts, rather than proper consideration of the relevant substantive arguments and underlying normative considerations. This called for an additional dimension to be added to the research question, namely consideration of the extent to which the ss 23 and 33 rights are informed by variable and possibly different normative principles and whether these rights allow for cooperative regulation of public employment in accordance with the doctrine of interdependent fundamental rights. This became the primary focus of the study. In an attempt to simplify the debate, a deliberate decision was taken to limit the scope of the normative study to South Africa with its own historic influences, structures and constitutional considerations. The study shows that both labour and administrative law (as constitutionally informed) share concern for equity-based principles. This is evident from the flexible contextually informed perspectives of administrative law reasonableness in relation to labour law substantive fairness, as well as a shared concern for and approach to procedural fairness. Once simplified, and in the absence of any undue positive law complexity, the public employment relationship, at both a normative and theoretical level, furthermore shows no substantive status difference with private employment relationships. It is, however, accepted that there are job and sector-specific contextual differences. In the absence of substantive normative conflict between these branches of law and in the absence of a fundamental (as opposed to contextual) difference between public and private employment, there appears to be no reason to ignore the constitutional jurisprudential calls for hybridity, otherwise termed the doctrine of interdependence. The idea of normatively interdependent rights expresses the Constitution’s transformative vision (through the idea of flexible conceptual contextualism) and recognises that human rights may overlap. This also means that where such overlap exists, rights should be interpreted and applied in a mutually supportive and cooperative manner that allows for the full protection and promotion of those rights. In giving expression to the interdependent normative framework of constitutional rights, these norms (absent any substantive rights-based conflict) should then be used by the judiciary as an interpretative tool to align specific labour law and general administrative law in the regulation of public employment relationships.