Doctoral Degrees (Mercantile Law)

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Browsing Doctoral Degrees (Mercantile Law) by Subject "Administrative law -- South Africa"

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    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.