Author: Prof Rochelle le Roux
Director of the Institute of Development and Labour Law; Professor in the Faculty of Law, University of Cape Town (UCT)
Most employers and employees have a broad understanding that the fairness of a dismissal rests on both a substantive and a procedural leg.
On the one hand, substantive unfairness, in broad strokes, suggests that an employee who should not have been dismissed, had been dismissed.
The legislature had chosen to express substantive fairness with reference to the employee’s misconduct or incapacity and the operational requirements of the employer. A dismissal for the latter reason is often referred to as retrenchment.
On the other hand, procedural unfairness implies that the employee had not been given an opportunity to be heard by the employer before the dismissal was affected. There is at least one practical reason for distinguishing between procedural and substantive fairness: when a dismissal is unfair only because the employer did not follow a fair procedure, the competent remedy is generally only payment of compensation and not reinstatement as would be the case when the dismissal is either substantively, or both substantively and procedurally, unfair.
Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP). All three volumes in the series are freely available in print or electronic form.
Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including unjust dismissal, and exclusion from certain job opportunities.
Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. , Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace. The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was…
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Author: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden
Although the Tanzanian Constitution (1977) guarantees the right to equality and prohibits discrimination based on gender and sex, lesbian, gay, bisexual and transgender (LGBT) people still face deeply rooted hostility, prejudice and widespread discrimination in the Tanzanian society. Threats of criminal penalty, social exclusion, harassment and violence make it particularly unsafe for one to come out as an LGBT person.
At present, certain homosexual acts between consenting adult males are criminalized under the Penal Code (Chapter 16 of the laws). Under section 154 of the Penal Code, committing or attempting to commit “unnatural offences” are crimes punishable with a maximum sentence of life imprisonment and twenty years’ imprisonment, respectively. “Unnatural offence” is defined as (1) sexual intercourse with any person “against the order of nature” as well as (2) consensual sexual intercourse between a man and man or woman “against the order of nature”. The words “against the order of nature” are not statutorily defined. Also, under section 157 of the Penal Code, it is an offence punishable with a maximum of five years imprisonment for any male person, whether in public or private, to commit an act of gross indecency with another male person. By section 3 of the Sexual Offences Special Provisions Act, “gross indecency” is defined as “any sexual act that is more than ordinary but falls short of actual intercourse and may include masturbation and indecent physical contact or indecent behavior without any physical contact”. Consent is no defense to any of these offences and no distinction regarding age is made in the text of the law. As the consequence of the existence of these laws criminalizing private consensual homosexual acts, LGBT people in Tanzania live in psychological stress and unceasing fear of prosecution and imprisonment.
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AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summariesPosted: 15 February, 2017
by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
228 page book online. Previous volumes.
Printable flyer with Table of Contents
Reproductive and sexual rights, which are guaranteed in constitutions and in international and regional human rights treaties, have no impact if they are not recognized and enforced by national-level courts. Legal Grounds: Sexual and Reproductive Rights in Sub-Saharan African Courts Volume III continues to provide much-needed information about whether and how national courts of African countries apply constitutional and human rights to protect reproductive and sexual rights. The case summaries, significance sections, and thematic highlights serve as useful resources for those seeking to further develop litigation, advocacy, and capacity- building strategies.
Like its predecessors, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts – Volume III is a tool for organizations, individuals, and institutions…
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Congratulations to Ronaldah Lerato Karabo Ozah and the Centre for Child Law at the University of Pretoria, a law clinic which was accepted and thanked as amicus curiae in this recent decision:
AB and Surrogacy Advisory Group v. the Minister of Social Development (Centre for Child Law as Amicus Curiae) CCT 155/15, decided November 29, 2016 (Constitutional Court of South Africa) Decision online.
On 29 November 2016, the South African Constitutional Court found that the “genetic-link requirement” for surrogate motherhood agreements is constitutionally valid and does not unjustifiably limit the rights of persons who cannot contribute their own gametes for surrogate motherhood agreements. The decision follows the challenge by the Applicants to section 294 of the Children’s Act (38 of 2005) which requires that the gametes of at least one of the commissioning parents must be used for the conception of a child to be born from a surrogate…
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Tanzanian Court: Third party consent to marriage of girls under 18 is unconstitutional
Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision for REPROHEALTHLAW subscribers. He is also Chief Editor of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2017.
Rebeca Z. Gyumi v. Attorney General, Miscellaneous Civil Cause No 5 of 2016 decided on July 8, 2016. (High Court of Tanzania, unreported) Decision online.
Abstract: The Court considered whether by permitting girls under the age of 18 to marry by third party consent, Sections 13 and 17 of the Marriage Act CAP R.E. 2002 (Marriage Act) violate the right to equality, the right to expression and receipt of information as provided for under Articles 12, 13, 18 and 21 of the Constitution of the United Republic of Tanzania…
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