Some South African trade unions are spitting mad at the Registrar of Labour Relations who had the temerity last week to suggest the unions should abide by the January 2019 changes to South Africa’s labour law. At the apparent heart of their discontent lies the obligation of union members to cast a secret vote in favour of a strike as a legal prerequisite.
The SCA recently declared the hate speech provision contained in the Promotion of Equality and Prevention of Unfair Discrimination Act invalid, and held that the provision was ‘overbroad’ and unjustifiably limited the right to freedom of expression. The appeal court struck down the legislation, giving Parliament 18 months to fix it. But in the meantime the court has, through “reading in” some words and cutting out others, created a new section 10 (1) to apply until Parliament amends the Act. The new section requires that there must be incitement to cause harm and sticks to the grounds in section 16 (2) of the Constitution — adding one, the ground of sexual orientation. The declaration of invalidity must be confirmed by the Constitutional Court to become effective. If the judgment (and the remedy) is confirmed, section 10(1) of PEPUDA will read as follows until such time as Parliament redrafts the section: “No person may advocate hatred that is based on race, ethnicity, gender, religion or sexual orientation and that constitutes incitement to cause harm”.