Public interest litigation, labour law, and women's rights in South Africa

Coleman, Natasha Kim
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South African women have been afforded the rights to equality, fair labour practices, to join and participate in trade unions and embark on strike action. They can enforce these rights through several mechanisms created by a litany of labour law legislation. Yet, women in South Africa continue to face marginalization and exploitation where the nature of work, occupational level, remuneration, legal protections, working conditions and employment benefits are organised by a deeply racialized and gendered labour market. While the use of strategic litigation to obtain, secure and defend rights is common in South Africa, such efforts to achieve labour justice for women have not formed part of traditional or leading public interest litigation (PIL). Against the backdrop of emerging gender labour justice PIL responding to women’s unpaid care work in Ex Parte Nkala and Others (44060/18) [2019] ZAGPJHC 260 (Nkala) and women’s undervalued work in Mahlangu and Another v Minister of Police (CCT 88/20) [2021] ZACC 10 (Mahlangu), this research report seeks to address a lacuna in contemporary PIL scholarship and practice. Defining gender labour justice within Nancy Fraser’s triangulated theory of justice, a historical and contemporary account of such PIL is provided. This research report aims to establish that the historical inattention, infrequent and limited gains made in gender labour justice PIL from the 1980s to the early 2000s has shifted to rejuvenated and novel PIL in the last decade. By spotlighting the contemporary examples of Nkala and Mahlangu, this research report sets out the potential impacts of gender labour justice PIL and its utility for PIL’s overarching goal of achieving social justice.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework to the Faculty of Commerce, Law and Management, School of Law, University of the Witwatersrand, Johannesburg, 2022