To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.

M.Phil. (Labour Law and Employment Relations) / Please refer to full text to view abstract

M.Phil. (Labour Law & Employment Relations) / The Department of Correctional Services (DCS) is a security-oriented institution and one of its constitutional mandates is to keep offenders in safe and humane conditions until they are lawfully released. Employment relations are fraught with inevitable conflict because where there is more than one human being it follows that it (conflict) will surface. Hence, conflict leads to grievances. This study was intended to achieve the following objectives: - to conduct a literature investigation on grievance handling procedures in the DCS -to conduct an empirical investigation into employees' perceptions of grievance handling procedures in the DCS -to formulate recommendations for guidelines for the use of management III improving grievance handling procedures in the DCS According to the DCS's annual report of 200412005, more than half of the grievances lodged (54.98%) during that time were not resolved. This should be cause for concern for any organisation, especially one like the DCS where each and every employee needs to be at his/her best in terms of commitment and the employer should in turn have the leverage of trusting them (employees) all. Through the research questionnaire, this study gave employees an opportunity to interact with the researcher with a view to providing some guidelines for improving grievance handling in the DCS. Similarly, the study provided the researcher with an opportunity to find out from the respondents what, in their view, needs to be done to improve grievance handling in the DCS…

The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.

Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.

Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.

Rationale: It cannot be denied that there has been improvement in demographic representation in South Africa since the implementation of the Employment Equity Act 55 of 1998. Whilst there may still be room for improvement, especially on employer attitudes towards the implementation of employment equity, improved representation of the Previously Disadvantaged Groups has evidently appreciated, however, marginally. Research purpose: This study sought to explore stakeholder perceptions as to why Engcobo Local Municipality had not successfully implemented the Employment Equity Act. Research design, approach and method: This exploratory study was conducted at Engcobo Local Municipality on Councillors, Managers, Key Employees and representatives of Organised Labour. Main findings: a) Engcobo Local Municipality was found not to have complied with various aspects of the Employment Equity Act; b) Respondents mainly believed that failure to implement the Employment Equity Act by Engcobo Local Municipality was due to lack of capacity on the part of the municipality‟s stakeholders; c) Different countries followed different models in the implementation of their Employment Equity, depending on the peculiarity of their circumstances; and d) The most appropriate change management model on which the implementation of the South African Employment Equity is modelled is Hayes‟ Generic Change Management Model. Managerial implications: Future research may be that the municipality can benefit from the recommendations made by the respondents with regard to what they believe needs to be done to remedy the situation. Some of the suggestions include the intensification of communication, establishment consultative structures to facilitate communication and the capacitation of stakeholders to ensure that they understand their responsibilities regarding the implementation of the Employment Equity Act. Contribution: The contribution of the research is supporting the current knowledge base of stakeholders towards the implementation of the Employment Equity Act. Proactive implementation measures should be taken to ensure that people who should benefit from the implementation of the Act are not disadvantaged by the municipality‟s failure to implement the Act. The introduction of the alignment with human resource management practices that complement the implementation of Employment Equity, could overcome the barriers currently being experienced in the effective implementation of the Employment Equity Act.

Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.

South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.

The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.