Affirmative action and people with disabilities in the work place
- Authors: Mpambani, Ntombizodwa Rose
- Date: 2023-04
- Subjects: Affirmative action programs -- Law and legislation , People with disabilities , Work environment
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60685 , vital:66321
- Description: Worldwide and in South Africa, affirmative action has been extensively used both as a policy instrument and a means of social reparation and reform. This study focuses on compliance and monitoring for affirmative action for persons with disabilities in the South African workplace. Affirmative action is a transitory method of advancing equality. Constitutionally, it is acknowledged in South Africa that affirmative action in the form of substantive equality. This study explores whether or not employers utilize affirmative action in accordance with the Employment Equity Act. It also aims to evaluate how the Department of Employment and Labour and the courts implement affirmative action. The study considers the relevant literature available, statutes, and employment equality policies, as well as an evaluation of case law. In South Africa, individuals who have disabilities are one of the groups that the Employment Equity Act attempts to protect. People with disabilities are disadvantaged in the work arena, which has substantial psychological, social, and economic consequences. The government established the numerical target that employers must strive to achieve in the workplace. Consequently, it is essential to investigate further the obstacles that impede the employment of persons with disabilities including the physical accessibility of the environment and information, transportation, the attitudes of others (such as employers and co-employees), and the extra expenditures associated with managing a disability. The delivery, nature, and structure of an individual's education is one of the first determinants of socialization into society. There is a delicate relationship between poverty, disability, and social assistance programs that may have a substantial effect on the employment and job search of persons with disabilities. Interestingly, South Africa combines significant unemployment rates with effective social assistance programs. There are compelling economic, social, psychological, and political arguments for boosting the employment of those with disabilities. The policy of affirmative action is effective, but the study notes that the objectives have not yet been realized. The situation in South Africa is compounded by a variety of confusing circumstances, including substantial unemployment, strong social assistance, and disabled individuals with poor skill levels. The survey concluded that the majority of firms do not execute affirmative action appropriately and that enforcement is minimal. It is recommended that disabled workers and labour unions confront employers that do not comply with the Employment Equity Act. To guarantee that persons with disabilities are completely integrated into the workforce, proactive and constructive strategies must be used. It is the morally just and virtuous thing to do, not just for disabled people but for all people. , Thesis (LLM) -- Faculty of Law, School of School: Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Mpambani, Ntombizodwa Rose
- Date: 2023-04
- Subjects: Affirmative action programs -- Law and legislation , People with disabilities , Work environment
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60685 , vital:66321
- Description: Worldwide and in South Africa, affirmative action has been extensively used both as a policy instrument and a means of social reparation and reform. This study focuses on compliance and monitoring for affirmative action for persons with disabilities in the South African workplace. Affirmative action is a transitory method of advancing equality. Constitutionally, it is acknowledged in South Africa that affirmative action in the form of substantive equality. This study explores whether or not employers utilize affirmative action in accordance with the Employment Equity Act. It also aims to evaluate how the Department of Employment and Labour and the courts implement affirmative action. The study considers the relevant literature available, statutes, and employment equality policies, as well as an evaluation of case law. In South Africa, individuals who have disabilities are one of the groups that the Employment Equity Act attempts to protect. People with disabilities are disadvantaged in the work arena, which has substantial psychological, social, and economic consequences. The government established the numerical target that employers must strive to achieve in the workplace. Consequently, it is essential to investigate further the obstacles that impede the employment of persons with disabilities including the physical accessibility of the environment and information, transportation, the attitudes of others (such as employers and co-employees), and the extra expenditures associated with managing a disability. The delivery, nature, and structure of an individual's education is one of the first determinants of socialization into society. There is a delicate relationship between poverty, disability, and social assistance programs that may have a substantial effect on the employment and job search of persons with disabilities. Interestingly, South Africa combines significant unemployment rates with effective social assistance programs. There are compelling economic, social, psychological, and political arguments for boosting the employment of those with disabilities. The policy of affirmative action is effective, but the study notes that the objectives have not yet been realized. The situation in South Africa is compounded by a variety of confusing circumstances, including substantial unemployment, strong social assistance, and disabled individuals with poor skill levels. The survey concluded that the majority of firms do not execute affirmative action appropriately and that enforcement is minimal. It is recommended that disabled workers and labour unions confront employers that do not comply with the Employment Equity Act. To guarantee that persons with disabilities are completely integrated into the workforce, proactive and constructive strategies must be used. It is the morally just and virtuous thing to do, not just for disabled people but for all people. , Thesis (LLM) -- Faculty of Law, School of School: Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
An evaluation of the national minimum wage dispensation
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
Legal aspects of fairtrade objectives and socio-economic development in South Africa
- Authors: Young, Lindsay
- Date: 2023-04
- Subjects: Law--Psychological aspects , Balance of trade , Socio-economic status -- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60901 , vital:69016
- Description: This dissertation aims to draw connections between Fairtrade and the socio-economic development objectives for South Africa in order to identify whether Fairtrade can contribute to socio-economic development in South Africa. In order to draw these connections, Fairtrade is examined in the context of the international trade system, Fairtrade is analysed in terms of socio-economic development in Africa, and the specific socio-economic development objectives for South Africa are outlined. Thereafter, in chapter 5, connections are drawn between Fairtrade and the socioeconomic development objectives for South Africa. Finally, the research is concluded by summarising the main finding of whether Fairtrade can contribute to socioeconomic development in South Africa, and setting out the key findings that were reached in answer to the sub-questions posed. This research is conducted by way of a literature review that draws from various research fields due to the nature of the socio-economic issues involved. The findings indicate that Fairtrade is sufficiently aligned to the socio-economic development objectives for South Africa to be used as a tool to contribute towards socio-economic development in South Africa. The research also suggests ways in which the connections between Fairtrade and South Africa’s socio-economic development objectives can be strengthened. , Thesis (LLM) -- Faculty of Law, School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Young, Lindsay
- Date: 2023-04
- Subjects: Law--Psychological aspects , Balance of trade , Socio-economic status -- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60901 , vital:69016
- Description: This dissertation aims to draw connections between Fairtrade and the socio-economic development objectives for South Africa in order to identify whether Fairtrade can contribute to socio-economic development in South Africa. In order to draw these connections, Fairtrade is examined in the context of the international trade system, Fairtrade is analysed in terms of socio-economic development in Africa, and the specific socio-economic development objectives for South Africa are outlined. Thereafter, in chapter 5, connections are drawn between Fairtrade and the socioeconomic development objectives for South Africa. Finally, the research is concluded by summarising the main finding of whether Fairtrade can contribute to socioeconomic development in South Africa, and setting out the key findings that were reached in answer to the sub-questions posed. This research is conducted by way of a literature review that draws from various research fields due to the nature of the socio-economic issues involved. The findings indicate that Fairtrade is sufficiently aligned to the socio-economic development objectives for South Africa to be used as a tool to contribute towards socio-economic development in South Africa. The research also suggests ways in which the connections between Fairtrade and South Africa’s socio-economic development objectives can be strengthened. , Thesis (LLM) -- Faculty of Law, School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
The enforcement of settlement of agreements and arbitration awards
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
The legislation regulation of consensual sexual acts by 16 and 17 years
- Authors: Nkontso, Siviwe
- Date: 2023-04
- Subjects: Delegated legislation , Sexual intercourse , Teenagers
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60718 , vital:66461
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”), was promulgated to consolidate the laws relating to sexual offences in South Africa. One of the most important aspects of SORMA was that it made provision for the prosecution of those who engaged in sexual acts with minor children. However, SORMA had a major drawback in that it not only criminalised consensual sexual acts with children by adults, but also criminalised consensual sexual acts between children themselves. Thus, children could be prosecuted for engaging in consensual sexual conduct with each other. Stemming from this peculiar position, the provisions of section 15 (statutory rape) and section 16 (statutory sexual assault), insofar as they related to the prosecution of adolescents for engaging in consensual sexual acts with each other, was constitutionally challenged by various human rights organisations. The Constitutional Court in Teddy Bear Clinic v Minister of Justice and Constitutional Development 2014 (2) SA (CC) found that the provisions of section 15 and 16 of SORMA were unconstitutional insofar as they criminalised consensual sexual acts between adolescents older than 12 but younger than 16. The original version of SORMA, for purposes of sections 15 and 16, defined a child as a person under the age of 16 years. Only children younger than 16 years received protection under SORMA. The provisions of sections 15 and 16 of SORMA were the subject of a constitutional challenge in Teddy Bear Clinic. However, the position of 16 and 17 year old children was not dealt with, as it did not form part of the issues that had to be decided by the court. Subsequent to the Teddy Bear Clinic judgment, SORMA was amended, and the amended version defined a child as a person younger than 18 years. Despite this, 16 and 17 year old children did not fall within the ambit of protection provided by SORMA. They were still exposed to prosecution for consensual sexual acts with their adolescent counterparts. Moreover, they were not protected against adult sexual predators who prey on young children. Effectively, SORMA provided some degree of protection, but such protection is not sufficient, and it is contrary to the best interests of the child principle. vi Thus, this research project seeks to highlight, assess and criticise the failure of SORMA to provide adequate legislative protection to 16 and 17 year old children. They still face the possibility of prosecution for consensual sexual acts with other adolescent children, and, they are not offered any protection from adult sexual predators. This position is unacceptable as it is contrary to the spirit and purport of the Constitution, specifically the best interests of the child principle, an important international law principle. Article 3 (1) of the Convention on the Rights of the Child provides that in all matters concerning children, the best interests of the child shall be a primary consideration. The African Charter on the Rights and Welfare of the Child provides that in all actions concerning the child, the best interests of the child shall be the primary consideration. Thus, the lack of protection of 16 and 17 year old children under SORMA is not only contrary to the Constitution, but also to a fundamental international law principle. , Thesis (LLM) -- Faculty of Law, School of Criminal & Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Nkontso, Siviwe
- Date: 2023-04
- Subjects: Delegated legislation , Sexual intercourse , Teenagers
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60718 , vital:66461
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”), was promulgated to consolidate the laws relating to sexual offences in South Africa. One of the most important aspects of SORMA was that it made provision for the prosecution of those who engaged in sexual acts with minor children. However, SORMA had a major drawback in that it not only criminalised consensual sexual acts with children by adults, but also criminalised consensual sexual acts between children themselves. Thus, children could be prosecuted for engaging in consensual sexual conduct with each other. Stemming from this peculiar position, the provisions of section 15 (statutory rape) and section 16 (statutory sexual assault), insofar as they related to the prosecution of adolescents for engaging in consensual sexual acts with each other, was constitutionally challenged by various human rights organisations. The Constitutional Court in Teddy Bear Clinic v Minister of Justice and Constitutional Development 2014 (2) SA (CC) found that the provisions of section 15 and 16 of SORMA were unconstitutional insofar as they criminalised consensual sexual acts between adolescents older than 12 but younger than 16. The original version of SORMA, for purposes of sections 15 and 16, defined a child as a person under the age of 16 years. Only children younger than 16 years received protection under SORMA. The provisions of sections 15 and 16 of SORMA were the subject of a constitutional challenge in Teddy Bear Clinic. However, the position of 16 and 17 year old children was not dealt with, as it did not form part of the issues that had to be decided by the court. Subsequent to the Teddy Bear Clinic judgment, SORMA was amended, and the amended version defined a child as a person younger than 18 years. Despite this, 16 and 17 year old children did not fall within the ambit of protection provided by SORMA. They were still exposed to prosecution for consensual sexual acts with their adolescent counterparts. Moreover, they were not protected against adult sexual predators who prey on young children. Effectively, SORMA provided some degree of protection, but such protection is not sufficient, and it is contrary to the best interests of the child principle. vi Thus, this research project seeks to highlight, assess and criticise the failure of SORMA to provide adequate legislative protection to 16 and 17 year old children. They still face the possibility of prosecution for consensual sexual acts with other adolescent children, and, they are not offered any protection from adult sexual predators. This position is unacceptable as it is contrary to the spirit and purport of the Constitution, specifically the best interests of the child principle, an important international law principle. Article 3 (1) of the Convention on the Rights of the Child provides that in all matters concerning children, the best interests of the child shall be a primary consideration. The African Charter on the Rights and Welfare of the Child provides that in all actions concerning the child, the best interests of the child shall be the primary consideration. Thus, the lack of protection of 16 and 17 year old children under SORMA is not only contrary to the Constitution, but also to a fundamental international law principle. , Thesis (LLM) -- Faculty of Law, School of Criminal & Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
The programmatic enforcement of the affirmative action provisions of the employment equity act, 55 of 1998
- Authors: Ntshoza, Zoleka Albertina
- Date: 2023-04
- Subjects: Program -- implementation , Affirmative action programs , Discrimination in employment -– Law and legislation —- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60832 , vital:67863
- Description: This study explores the mechanisms contained in the Employment Equity Act of 1998 (EEA) that are in place to ensure that all employers comply with the EEA. The research introduces the topic and the background of the EEA and further discusses its important provisions. The EEA is an Act which was adopted to enable section 9 and 23 (1) of the Constitution. It is there to ensure equality in the workplace. The purpose of the EEA is to eliminate unfair discrimination in the workplace and promote equity for designated groups. This research discusses the application of the EEA and its interpretation by our courts. It does this by discussing leading cases of the EEA and other relevant fields of the labour law. Amongst other discussions in the research is the case of South African Police Service v Solidarity obo Bernard. In this case, a white female employee referred a matter of unfair discrimination to the court for her non-appointment, even though she was the only one who qualified for the job. The employer had preferred a black female candidate for the position. The court held that the discrimination was fair and relied on the employers Employment Equity Plan to determine whether the discrimination was just and equitable in terms of section 36 of the Constitution. Thereafter, this research considers the role of different bodies or structures that are in place to ensure compliance and implementation of affirmative action policies as outlined in the EEA. At the centre of this research is the role played by the inspectorate, the Commission for Employment Equity, and the Director General of the Department of Employment and Labour. These are the structures of the Department of Employment and Labour that are charged with enforcement of the labour laws and policies. Each structure has its own legislative duties. For example, in terms of the EEA, the inspector must conduct inspections for the employer’s workplace, make recommendations for compliance where it is necessary, and issue fines as a final sanction for non-compliance. On the other hand, the Commission for Employment Equity (CEE) investigating compliance, issuing annual reports, doing compliance reviews, issuing certificates of compliance and non-compliance and awards etc. In addition, the research also explores the enforcement penalties imposed by the EEA. It also incorporates a comparative study between the penalties imposed by South Africa with that of Namibia and Canada. This study will show how Canada’s EEA and South Africa are lenient compared to the Namibian one. In Namibia, non-compliance is not only sanctioned with fines but with other harsh sanctions that have detrimental effects on non-complying employers. Finally, the research makes a summary and findings of the study. Thereafter, it discusses the failures and shortfalls of the EEA. These critiques are made in comparison with other EEA such as Namibia, and further the researcher offers her personal critiques and recommendations to the current system. It then concludes by summarising the findings of the final chapter , Thesis (LLM) -- Faculty of Law, School of of Labour Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Ntshoza, Zoleka Albertina
- Date: 2023-04
- Subjects: Program -- implementation , Affirmative action programs , Discrimination in employment -– Law and legislation —- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60832 , vital:67863
- Description: This study explores the mechanisms contained in the Employment Equity Act of 1998 (EEA) that are in place to ensure that all employers comply with the EEA. The research introduces the topic and the background of the EEA and further discusses its important provisions. The EEA is an Act which was adopted to enable section 9 and 23 (1) of the Constitution. It is there to ensure equality in the workplace. The purpose of the EEA is to eliminate unfair discrimination in the workplace and promote equity for designated groups. This research discusses the application of the EEA and its interpretation by our courts. It does this by discussing leading cases of the EEA and other relevant fields of the labour law. Amongst other discussions in the research is the case of South African Police Service v Solidarity obo Bernard. In this case, a white female employee referred a matter of unfair discrimination to the court for her non-appointment, even though she was the only one who qualified for the job. The employer had preferred a black female candidate for the position. The court held that the discrimination was fair and relied on the employers Employment Equity Plan to determine whether the discrimination was just and equitable in terms of section 36 of the Constitution. Thereafter, this research considers the role of different bodies or structures that are in place to ensure compliance and implementation of affirmative action policies as outlined in the EEA. At the centre of this research is the role played by the inspectorate, the Commission for Employment Equity, and the Director General of the Department of Employment and Labour. These are the structures of the Department of Employment and Labour that are charged with enforcement of the labour laws and policies. Each structure has its own legislative duties. For example, in terms of the EEA, the inspector must conduct inspections for the employer’s workplace, make recommendations for compliance where it is necessary, and issue fines as a final sanction for non-compliance. On the other hand, the Commission for Employment Equity (CEE) investigating compliance, issuing annual reports, doing compliance reviews, issuing certificates of compliance and non-compliance and awards etc. In addition, the research also explores the enforcement penalties imposed by the EEA. It also incorporates a comparative study between the penalties imposed by South Africa with that of Namibia and Canada. This study will show how Canada’s EEA and South Africa are lenient compared to the Namibian one. In Namibia, non-compliance is not only sanctioned with fines but with other harsh sanctions that have detrimental effects on non-complying employers. Finally, the research makes a summary and findings of the study. Thereafter, it discusses the failures and shortfalls of the EEA. These critiques are made in comparison with other EEA such as Namibia, and further the researcher offers her personal critiques and recommendations to the current system. It then concludes by summarising the findings of the final chapter , Thesis (LLM) -- Faculty of Law, School of of Labour Law, 2023
- Full Text:
- Date Issued: 2023-04
The protection of the primary residence of a debtor in debt enforcement and insolvency
- Ngobese, Surname, Nokhwezi Xatyiswa
- Authors: Ngobese, Surname, Nokhwezi Xatyiswa
- Date: 2023-04
- Subjects: Protection , Debtor and creditor -- Law and legislation , Bankruptcy -- Law and legislature
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/61328 , vital:70288
- Description: Many people, particularly in South Africa, turn to borrowing money to pay for their everyday expenses. It is also generally acknowledged that mortgage financing is crucial to our economy and that it should remain readily available to people with a variety of incomes. Banks, and other secured lenders need confirmations that their security is reasonably safe to ensure that this remains the case. A debtor with immovable property is preferred because should the debtor fail to comply with his contractual obligations and there is no movable property to attach, the creditor will proceed to attach the immovable property of that debtor. In South Africa the law relating to debt enforcement proceedings and the provisions of the Insolvent Act allow for the attachment of the primary residence of a debtor/insolvent. There is a judicial process that is followed for the attachment of the house through debt enforcement. During insolvency the debtor is divested of his property immediately after granting of the sequestration order. These proceedings go as far as stripping a poor person of even a RDP house that they obtained through the Housing Act, a programme designed to provide housing to the poor. This study examines the relationship between the right to access housing and the right to human dignity, considering South Africa's past, the idea of transformative constitutionalism, and the argument that the 1996 South African Constitution's transformative vision is one that is committed to addressing socio-economic inequality. The legal position in South Africa is compared to that of the United Kingdom and the recommendation made by the study is that a stay in proceedings during insolvency for a defined period before the home of the insolvent is sold in execution would help advance the goals of the government and protect rights of those people whose estates are declared insolvent. Further, a complete exclusion of RDP houses from debt enforcement proceeding and insolvency, is suggested. The rights to equality and the right to property are considered in favour of the creditor. All rights are considered against the limitation clause, and it is submitted that a stay in sale of the primary household for a specific period during insolvency proceedings and the complete exclusion of RDP homes from sales in execution and sales during sequestration would not amount to an unjustifiable limitation of the creditor’s rights. , Thesis (LLM) -- Faculty of Law, School of School of Private Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Ngobese, Surname, Nokhwezi Xatyiswa
- Date: 2023-04
- Subjects: Protection , Debtor and creditor -- Law and legislation , Bankruptcy -- Law and legislature
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/61328 , vital:70288
- Description: Many people, particularly in South Africa, turn to borrowing money to pay for their everyday expenses. It is also generally acknowledged that mortgage financing is crucial to our economy and that it should remain readily available to people with a variety of incomes. Banks, and other secured lenders need confirmations that their security is reasonably safe to ensure that this remains the case. A debtor with immovable property is preferred because should the debtor fail to comply with his contractual obligations and there is no movable property to attach, the creditor will proceed to attach the immovable property of that debtor. In South Africa the law relating to debt enforcement proceedings and the provisions of the Insolvent Act allow for the attachment of the primary residence of a debtor/insolvent. There is a judicial process that is followed for the attachment of the house through debt enforcement. During insolvency the debtor is divested of his property immediately after granting of the sequestration order. These proceedings go as far as stripping a poor person of even a RDP house that they obtained through the Housing Act, a programme designed to provide housing to the poor. This study examines the relationship between the right to access housing and the right to human dignity, considering South Africa's past, the idea of transformative constitutionalism, and the argument that the 1996 South African Constitution's transformative vision is one that is committed to addressing socio-economic inequality. The legal position in South Africa is compared to that of the United Kingdom and the recommendation made by the study is that a stay in proceedings during insolvency for a defined period before the home of the insolvent is sold in execution would help advance the goals of the government and protect rights of those people whose estates are declared insolvent. Further, a complete exclusion of RDP houses from debt enforcement proceeding and insolvency, is suggested. The rights to equality and the right to property are considered in favour of the creditor. All rights are considered against the limitation clause, and it is submitted that a stay in sale of the primary household for a specific period during insolvency proceedings and the complete exclusion of RDP homes from sales in execution and sales during sequestration would not amount to an unjustifiable limitation of the creditor’s rights. , Thesis (LLM) -- Faculty of Law, School of School of Private Law, 2023
- Full Text:
- Date Issued: 2023-04
The use of Police force in crowd management
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
The regulation of communications surveillance in Nigeria
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08
Integration of clinical legal education with procedural law modules
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
A trade union’s right to strike to acquire organisational rights
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
Application of section 197 of the Labour Relations Act in an insourcing context
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
Audio-Visual and Cyber Evidence in the Context of Criminal Law
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
Dismissal for racist remarks and racism
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
Disputes about the interpretation, application and breach of collective agreements
- Roelofse, Cornelius Johannes
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
Domestication of the international-law prohibition of child soldiering
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
Essential services in light of the 2014 Labour Law amendments
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020