faty
Get Complete Project Material File(s) Now! »
Legislation defined
All statutes have five distinguishing characteristics:18 Firstly, statutes are law texts.19 Other legal instruments share this characteristic. The following are all examples of law-texts: “constitutions, statutes, reported precedents, contracts in writing, wills, international treaties, heads of argument, pleadings in civil proceedings and so on.”20 Any behaviour that creates a legal norm is a text.21 Secondly, statutes are enacted.22 This means that legislative authority, such as a national or provincial parliament or someone authorised thereto by these authorities, must have ordained statutes. Thirdly, statutes are normative and not narrative.23 Statutes therefore create norms or standards and do not contain statements of alleged or relevant facts that are related to the purpose of the document. Some law-texts are both narrative and normative and there is therefore no watertight distinction between law-texts as either narrative or normative. Whether we describe a law-text as either narrative or normative will therefore depend upon the function thereof. Statutes can be narrative in the sense that all statutory provisions are designed to potentially cater for specific factual situations but also normative in the sense that the statutory provision has been designed to provide for these situations in a predictable or typical manner. 24 As such statutes are generally characterised as normative law-texts. Fourthly, statutes are “prescriptive” (in contradiction to “persuasive”).25 Statutes are considered to be prescriptive as they contain rules and principles that have the coercive force of law.26 They have binding force because the authors of statutes are vested with law-making authority derived, directly in the case of original legislation or ultimately in the case of delegated legislation, from the supreme Constitution.27 Fifthly, statutes are abstract (in contradiction to concretised).28 As such statutes denote ideas such as rule, principles and procedures that are meant to apply in general and not to a specific or concrete situation.
The primacy of legislation
This thesis argues that with the decrease in the efficacy of collective bargaining the importance of legislation has grown and will continue to grow in an attempt to provide sufficient protection for these workers. Smit and Fourie argue that, as the informal economy grows, the need for tailor-made legislative intervention becomes inescapable to extend protection to non-standard employees, including those in the informal economy.175 For the authors “good regulation” that provides for basic terms and conditions but is not excessively onerous to comply with – resulting in evasion thereof is paramount.176 Additionally, as the function and purpose of labour law is reconsidered this expanded space will not be filled by collective agreements but rather by legislation. The description of this development is not a normative comment on the desirability of the increase in the importance of labour legislation. It is merely a factual description that supports a re-evaluation of the importance of statutory interpretation within the context of labour law specifically. Globally, regulation by means of legislation has also faced its share of problems as some workers do not meet statutory criteria of entitlement or they do not meet the requirement to be termed employees. Others work in remote workplaces beyond the reach of often overburdened and/or underfunded labour inspectors or unions. Employers are often small and struggling or powerful and hostile to unionisation and regulation.177
CHAPTER 1 Introduction
1 Research statement
2 Assumptions
3 Research questions and research aims
4 Justification
5 Methodology and limitations
6 Outline
Chapter 2: The rise of legislation in regulating the employment relationship
1 Introduction
2 Legislation defined
3 The rise of the legislation-state
4 The regulation of the employment relationship by means of legislation
5 Labour legislation in South Africa
6 Conclusion
CHAPTER 3 Approaches to the interpretation of statutes
1 Introduction
2 Theories of statutory interpretation
3 Theoretical underpinnings
4 Other constitutional waymarks
5 Conclusion
Chapter 4: The historical dimension
1 Introductory remarks on the elements of interpretation
2 Introduction
3 Roman law
4 Roman Dutch law
5 English law
6 South African inception
7 The post-constitutional landscape
8 Conclusion
Chapter 5: The language dimension
1 Introduction
2 Text in context
3 The text
4 Canons of grammatical interpretation
5 Conclusion
Chapter 6: The contextual dimension
1 Introduction
2 Mischiefs in employment
3 Political change
4 Evolution of employment
5 Conclusion
Chapter 7: The values dimension
1 Introduction
2 Dignity
3 Equality
4 Social justice
5 Fair labour practices
6 Security of employment
7 Labour market flexibility
8 Freedom of contract
9 Conclusion
Chapter 8: The comparative dimension
1 Introduction
2 International law
3 Foreign law
4 Conclusion
CHAPTER 9 Conclusion
1 Introduction
2 Findings
3 Recommendations
4 Further study required
5 Concluding remarks
