The constitutional right to fair labour practices: a consideration of the influence and continued importance of the historical regulation of (un)fair labour practices pre-1977 (original) (raw)
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On the 22nd of May 2013, Zimbabwe adopted a new Constitution with an expanded Bill of Rights. The most important section in the new Constitution relevant to labour law is Section 65 which specifically deals with labour rights. Section 65 (1) specifically provides for every person’s right to “fair and safe labour practices and standards and to be paid a fair and reasonable wage.” The new governance charter compels a mind shift from a linear common law approach to a poly-centric socio-economic approach. The right to fair labour practices is an unusual Constitutional guarantee. It is also found in sections 23 and 31 of the Constitutions of South Africa and Malawi respectively. In exitu is the fact that the full import and potential of the right has to be harnessed as it appears that its exact interpretation, extent and scope remain enshrouded in obscurity. Accordingly, this dissertation provides a concrete model of interpretation of the right to fair labour practices. As Conradie puts it, “It has therefore become necessary to determine the exact scope of this Constitutional right in order to investigate whether there is any room for an extended view of this right and to which limitations (If any) it should be subjected to.” Since the fair labour practice concept is a fairly recent concept in Zimbabwean labour law, there is need to arrive at the exact scope of the right. Holmes J had to say, “The word ‘right’ is one of the most deceptive of pitfalls, it is easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.” Moreover, there are a myriad of uncertainties that surround this right which remain unattended to and cannot be further postponed.
The equitable foundations of South African labour law: an historical and comparative study
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Of crucial importance is the relationship between equity and the so-called Constitutional values enshrined in the Constitution, such as life, dignity, equality, security of person, and security of employment. Other burning issues relating to the application of equity in South African labour law are also explored, such as the relationship between equity and lawfulness, public policy, morality, the boni mores, judicial precedent and the employer's prerogative-all within the context of the Constitutional imperative of fair labour practices for everyone. We attempt to show that much is to be learnt from the common law and the foreign law systems that we investigated. The main-if not the sole-aim of such an exercise should always be the harmonization of the whole of our labour law, but especially the statutory regime, with s 23(1) of the Constitution. It goes without saying that that would be a never-ending, organic process of realizing the ideal of comprehensive fairness in our labour dispensation. A brief word concerning the methodology adopted in this study. Both legs of the study, namely equity on the one hand, and labour law on the other, can never operate in isolation in any legal system. A legal system generally forms an organic whole. For this reason we have commenced each of our chapters with an examination of the general principles of equity that apply in a particular legal system, not only in labour law, but in law generally. This we followed up by a brief outline of the general labour law principles applicable in that legal system, and finally, an integrative consideration of the equitable principles underlying the labour law of such a system. Only in this way could we do justice to the subject of investigation and the title to this work. The reference systems used in this work are those of the Journal for Contemporary Romen Dutch Law and the Journal /ForJuridical Science for the footnotes and the bibliography respectively. 6 CHAPTER II ROMAN LAW 2.1. EQUITY AND LAW IN GENERAL Roman jurisprudence was not only thoroughly acquainted with the concept of equltv," but regarded it as an indispensible part of law." Cicero? made it clear that when equity is ignored, the very principle of legality is threatened." Equity, far from being a breeding ground for rash, ill-considered arbitrary action alien to law, is in fact the very bedrock of the principle of legality, and any contravention of equity is a violation of this prlnctple.? Equity and law as concepts may not be co-extensive, but are without a doubt integrated and inextricably interwoven. Equity is not immanent to law, but inherent to it. So is what is good and equitable-the so-called bonum et 5 Referred to in the sources as aequitas. On the etymological derivation of the word, see Mcgregor, "Aequitas-Billijkheid-Rede" 1938 2 THRHR 1. The concept of equity was used by the Romans in a number of senses and with quite a few nuances, such as fairness, goodness, benigness, reasonableness,
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