Abstract
To establish which legal system will govern the relationship between parties involved in an international employment contract, the rules of private international law (or conflict of laws) must be applied. Each country has its own rules of private international law and each country’s courts will apply its own rules if the court is seized with a matter that involves foreign elements. There may be conflict between the potentially applicable legal systems of countries in terms of the level of protection afforded to employees who are parties to international employment contracts.
 
 South Africa has constitutionalised the right to fair labour practices and the question is whether this right is applicable to South African employees working in other countries, or to foreigners working in South Africa who originate from countries where this right is not protected. The answer to this question is to be found in the influence of the Constitution on the rules of private international law as applied by South African courts.
 
 It is evident from recent judgments of the Labour Court that the Court will readily assume jurisdiction and will furthermore readily hold that the proper law of the contract is South African law in order to protect the constitutional rights of employees involved in international employment contracts.
 
 Had the Labour Court held that the place of performance was still the decisive connecting factor, (as previously decided in most South African cases on this
 aspect) the law of the other countries involved in the international employment relationship could have left employees in a worse position than under South African law. This possibility seems to be one of the important underlying reasons for the Labour Court’s willingness to assume jurisdiction and to hold that the proper law was in fact South African law. 
 
 In the globalisation context the Labour Court has contributed to the advancement of constitutionalism by developing South Africa’s common law rules of private international law to afford constitutional protection to employees involved in international employment contracts. 
Highlights
This article will investigate the effect of globalisation on the development of constitutionalism in South Africa, in the context of the protection of employees involved in international employment contracts
Will these rights be applicable to South African employees working in other countries or to foreigners working in South Africa and coming from countries where these rights are not protected? The answer to this question will be found in the influence of the constitution on the rules of private international law as applied by South African courts
Had the Labour Court held that the place of performance was still the decisive connecting factor, the law of Malawi could have left the employee without a remedy or in a worse position than under South African law
Summary
This article will investigate the effect of globalisation on the development of constitutionalism in South Africa, in the context of the protection of employees involved in international employment contracts. If they were employees they may have been working for a South African employer, an employer based in an African country, or a foreign employer who has business interests in Africa This raises the question of how to determine which country's legal system will regulate an employment relationship with foreign aspects. The rules of private international law will be applied by the court seized with the matter and this will entail that a consecutive stages process be followed in order to establish which legal system should regulate the matter. The outcome of this process could be that another country's law will be applied by the South African court or that a foreign court will apply South African law. The fourth stage would be the ascertainment of the content of the lex causae.
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