LABOUR LAW
MRL3702
17 OCTOBER 2023 EXAMINATION
ANSWERS
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,QUESTION 1
According to recent statistics issued by the Department of Employment and
Labour, unemployment in South Africa is sitting at 32.7 percent. This number
includes both new and disgruntled graduates. The latter category has been
seeking jobs for more than five years without success and has since gave up. In
early 2023, a group of graduates formed a movement called Concerned
Unemployed Graduates of South Africa (CUGSA) which demands that the
government must make jobs available for all the graduates. Further that priority
should be given to South Africans when filing the positions and that a retirement
policy should be developed, which sets retirement age at 60 years across all the
economic sectors. These demands are aimed at levelling the unemployment curve
in South Africa, de-stress the country’s unemployed youth and to alleviate
poverty.
Garibishane, a Serbian national and a labour law student agrees with the demand
for the setting out of the retirement age but feels that the demand to prioritise
South Africans when hiring unfairly discriminates against non-South Africa.
With reference to relevant legal authority, write a one page well supported legal opinion
regarding the fairness of the two demands made by CUGSA insofar as they relate to age, and
discrimination based on nationality. (25)
The demands proposed by the Concerned Unemployed Graduates of South Africa (CUGSA) are
rooted in the prevalent socio-economic issues faced by South Africa. While their concerns are
valid, it is imperative to evaluate the legal implications and potential fairness of these demands.
This opinion focuses on two of their primary propositions: the retirement age setting and
prioritising South Africans for employment.
Setting Retirement Age at 60 Across All Economic Sectors:
Legal Standpoint:
South Africa's Employment Equity Act, 1998 (EEA) addresses the issue of unfair discrimination in
the workplace. While age is not directly pinpointed as a basis of discrimination in the EEA, any
form of discrimination should be justifiable based on reasonability and fairness.
Evaluation:
Setting a blanket retirement age at 60 across all sectors may pose challenges in terms of its
fairness and applicability. The nature of work varies across sectors, with some demanding
physical rigor and others intellectual capacity. Forcing a retirement age may inadvertently push
out individuals who are fit and capable of continuing their roles, whilst replacing them with
potentially less experienced individuals. This could reduce efficiency and productivity in some
sectors.
, Historically, South African courts have acknowledged the necessity of retirement policies to
strike a balance between generational fairness and providing opportunities for the younger
workforce. However, enforcing a uniform retirement age might be considered discriminatory
unless the goals of such a policy can be clearly demonstrated as being in the best interest of
society and the workforce, without unfairly prejudicing older employees.
Prioritising South Africans When Hiring:
Legal Standpoint:
Section 9 of the South African Constitution ensures equality before the law, offering everyone
the right to equal protection and benefit. This covers a vast array of discrimination grounds,
including nationality. Nevertheless, affirmative action measures to protect or advance persons,
or categories of persons, disadvantaged by past discrimination are permissible under the
Constitution.
Evaluation:
The priority given to South Africans over non-nationals in employment can be perceived as
nationalistic discrimination. While the intention to reduce unemployment rates among South
African graduates is noble, such a move must be carefully calibrated to avoid infringing on the
rights of non-South African residents or applicants.
Historically, South Africa has employed affirmative action policies to address past inequalities,
particularly those stemming from the apartheid era. However, prioritising employment based on
nationality, especially in a globalised world, can be seen as regressive and potentially harmful to
the country's international standing. This approach could deter foreign investments or potential
skilled immigrants who might be deterred by such policies.
Furthermore, the South African legal framework, as interpreted by the courts, places a
significant emphasis on fairness and justifiability. The focus is not merely on the act of
discrimination but its underlying intention and impact. If the intent is to correct past
disadvantages and the impact does not perpetuate discrimination, the act might be deemed
permissible. However, in the case of prioritising South Africans over others purely based on
nationality, it is debatable whether such a policy can be justified without perpetuating further
inequalities or discriminations.
