Equal pay for equal work
- Authors: Paul, Gary William
- Date: 2016
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa , Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
- Authors: Paul, Gary William
- Date: 2016
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa , Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
Legal privilege in tax matters
- Authors: Delport, Jacqueline Hayley
- Date: 2016
- Subjects: Tax administration and procedure Tax consultants
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12637 , vital:27101
- Description: In South Africa the boundaries of the common law principle of legal professional privilege in tax matters is unclear. Common law legal professional privilege in South Africa and in other jurisdictions has been a right available only to clients of attorneys. In 2015, amendments were enacted in section 42A of the Tax Administration Laws Amendment Act. These amendments set out further requirements that need to be satisfied for a taxpayer to claim his right to legal professional privilege over particular communications. The amendment does not feature any recognition of the extension of legal professional privilege for which all non-attorney tax practitioners have been lobbying for since the enactment of the Tax Administration Act. The stance taken by SARS in its non-response to the pleas for extension of legal professional privilege have both Constitutional and administrative consequences: constitutional consequences in the form of the infringement of the non-attorney tax practitioner’s right to equality and the taxpayer’s right to privacy: administrative consequences arise in the form of an infringement of an individual’s right to fair administrative justice under the Promotion of Administrative Justice Act. Foreign jurisdictions have been considered to determine whether South African is operating in line with international standards relating to legal professional privilege. Although, not every foreign jurisdiction examined for the purpose of this study, has implemented an extension of legal professional privilege, they have still ruled on the matter, or implemented an alternative solution, for example, a accountant concession for accountants. On this basis it is submitted that South Africa must implement a new provision within the Tax Administration Act defining the extension of legal professional privilege by law.
- Full Text:
- Date Issued: 2016
- Authors: Delport, Jacqueline Hayley
- Date: 2016
- Subjects: Tax administration and procedure Tax consultants
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12637 , vital:27101
- Description: In South Africa the boundaries of the common law principle of legal professional privilege in tax matters is unclear. Common law legal professional privilege in South Africa and in other jurisdictions has been a right available only to clients of attorneys. In 2015, amendments were enacted in section 42A of the Tax Administration Laws Amendment Act. These amendments set out further requirements that need to be satisfied for a taxpayer to claim his right to legal professional privilege over particular communications. The amendment does not feature any recognition of the extension of legal professional privilege for which all non-attorney tax practitioners have been lobbying for since the enactment of the Tax Administration Act. The stance taken by SARS in its non-response to the pleas for extension of legal professional privilege have both Constitutional and administrative consequences: constitutional consequences in the form of the infringement of the non-attorney tax practitioner’s right to equality and the taxpayer’s right to privacy: administrative consequences arise in the form of an infringement of an individual’s right to fair administrative justice under the Promotion of Administrative Justice Act. Foreign jurisdictions have been considered to determine whether South African is operating in line with international standards relating to legal professional privilege. Although, not every foreign jurisdiction examined for the purpose of this study, has implemented an extension of legal professional privilege, they have still ruled on the matter, or implemented an alternative solution, for example, a accountant concession for accountants. On this basis it is submitted that South Africa must implement a new provision within the Tax Administration Act defining the extension of legal professional privilege by law.
- Full Text:
- Date Issued: 2016
Taking gendered harms seriously : the utility of rape trauma syndrome evidence in dispelling rape myths in criminal trials
- Authors: Nkala, Amanda Nothabo
- Date: 2016
- Subjects: Rape trauma syndrome Women -- Crimes against Rape -- Psychological aspects
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/13458 , vital:39668
- Description: Rape is a violent crime marked by underreporting and low conviction rates. Notwithstanding the fact that most rape laws have been made to be gender-neutral, the statistics of rape are still devastatingly high even on a global scale. The majority of the victims are still predominantly females especially in the context of acquaintance rape. It is an uncontestable fact that rape usually occurs in secret making it possible for one to falsely accuse another and effectively rendering it difficult to refute. In light of this, victims who have managed to reach the courts have come face to face with a myriad of stereotypical beliefs and rape myths about rape victims. These have dealt a blow to their cases once their credibility is doubted because they may have exhibited behaviour that does not match with the classic or real rape victim as expected by the society. However rape is an egregiously unique crime that presents with serious psychological issues for the victim. As such it is possible for a rape victim to exhibit counterintuitive behaviour that can only be sensibly explained by an expert who has delved in human behavioural sciences. The alleged victim will be questioned on things like lengthy delay in reporting, returning to the scene of the crime, asking for taxi money the morning after the rape or even failing to scream and fight off the alleged assailant. Unfortunately, the psychological effects of rape have more often than not been overlooked in our criminal justice system giving way for blame shifting in that the female victim is called upon to account for why the rape may have happened to her. These psychological reactions, responses and counterintuitive behaviour have been characterized as Rape Trauma Syndrome by specialists in psychology and psychiatry. In the context of this study, Rape Trauma Syndrome is a form of expert opinion evidence which is relevant, helpful and necessary because it can dispel rape myths and stereotypical beliefs about rape victims by educating the courts about the psychological reactions of rape victims. Against this backdrop, this research project investigates the utility of Rape Trauma Syndrome evidence in dispelling rape myths in rape trials, focusing especially on the admissibility and use of that syndrome as evidence in other jurisdictions at the level of comparative analysis in order to establish whether it can be utilised in the South African context.
- Full Text:
- Date Issued: 2016
- Authors: Nkala, Amanda Nothabo
- Date: 2016
- Subjects: Rape trauma syndrome Women -- Crimes against Rape -- Psychological aspects
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/13458 , vital:39668
- Description: Rape is a violent crime marked by underreporting and low conviction rates. Notwithstanding the fact that most rape laws have been made to be gender-neutral, the statistics of rape are still devastatingly high even on a global scale. The majority of the victims are still predominantly females especially in the context of acquaintance rape. It is an uncontestable fact that rape usually occurs in secret making it possible for one to falsely accuse another and effectively rendering it difficult to refute. In light of this, victims who have managed to reach the courts have come face to face with a myriad of stereotypical beliefs and rape myths about rape victims. These have dealt a blow to their cases once their credibility is doubted because they may have exhibited behaviour that does not match with the classic or real rape victim as expected by the society. However rape is an egregiously unique crime that presents with serious psychological issues for the victim. As such it is possible for a rape victim to exhibit counterintuitive behaviour that can only be sensibly explained by an expert who has delved in human behavioural sciences. The alleged victim will be questioned on things like lengthy delay in reporting, returning to the scene of the crime, asking for taxi money the morning after the rape or even failing to scream and fight off the alleged assailant. Unfortunately, the psychological effects of rape have more often than not been overlooked in our criminal justice system giving way for blame shifting in that the female victim is called upon to account for why the rape may have happened to her. These psychological reactions, responses and counterintuitive behaviour have been characterized as Rape Trauma Syndrome by specialists in psychology and psychiatry. In the context of this study, Rape Trauma Syndrome is a form of expert opinion evidence which is relevant, helpful and necessary because it can dispel rape myths and stereotypical beliefs about rape victims by educating the courts about the psychological reactions of rape victims. Against this backdrop, this research project investigates the utility of Rape Trauma Syndrome evidence in dispelling rape myths in rape trials, focusing especially on the admissibility and use of that syndrome as evidence in other jurisdictions at the level of comparative analysis in order to establish whether it can be utilised in the South African context.
- Full Text:
- Date Issued: 2016
The application of section 17 of the Employment of Educators' Act
- Authors: Mnguni, Sihle
- Date: 2016
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11865 , vital:26999
- Description: The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.
- Full Text:
- Date Issued: 2016
- Authors: Mnguni, Sihle
- Date: 2016
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11865 , vital:26999
- Description: The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.
- Full Text:
- Date Issued: 2016
The legal consequences of migration of public Further Education and Training college employees to the Department of Higher Education and Training
- Coetzer, Louwrens Stefanus Daniel
- Authors: Coetzer, Louwrens Stefanus Daniel
- Date: 2016
- Subjects: College personnel management -- South Africa , Education, Higher -- South Africa -- Administration , Educational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6983 , vital:21189
- Description: Staff, previously employed by Public Technical and Vocation Education and Training (TVET) Colleges, migrated (transferred) to the Department of Higher Education and Training (DHET) in terms of Section 197 of the Labour Relations Act. This treatise investigates the legal consequences of the migration of the staff from the fifty (50) TVET Colleges to DHET and focuses on the different categories of staff. The conditions of service of all the categories of staff before migration are compared with that after the migration. Meaningful recommendations are made about negotiations that should take place in the respective bargaining chambers in order to ensure a smooth transition that will prevent unnecessary legal consequences in future. The treatise furthermore analyses the legal consequences of staff, employed by temporary employment services to perform outsourced functions at TVET Colleges, who did not migrate to DHET. The legal implications of these members of staff is debated and evaluated. The treatise also discusses the performance management system and the changes from the integrated quality management system of lecturers to the performance management development system of public servants. TVET Colleges absorb the employment costs (as a separate employer) to ensure that there is growth in the Full Time Equivalents of Ministerial programmes, funded by DHET. The treatise makes meaningful recommendations to the new employer (DHET) with regard to the appointment of staff to conduct ministerial programmes and the overtime remuneration of current staff that willingly agree to work overtime but are not fairly remunerated by DHET. The treatise also considers the second phase of the migration process, namely the development of a blueprint organogram and the development of job descriptions for the different functions identified on the organogram. The process should ideally be followed by a restructuring process where staff are placed in identified functions and must be capacitated to perform the functions adequately. This process will ensure alignment of functions in the fifty TVET Colleges. Finally, the treatise notes the issue of workplace discipline at the TVET College and the definition of the workplace. It offers a proposal to the DHET to negotiate with the unions about defining the workplace as this has a legal consequence for attaining the objective of sound labour relations. It make meaningful recommendations about the overlapping regulatory requirements applicable to the TVET College as a legal person and DHET as an employer.
- Full Text:
- Date Issued: 2016
- Authors: Coetzer, Louwrens Stefanus Daniel
- Date: 2016
- Subjects: College personnel management -- South Africa , Education, Higher -- South Africa -- Administration , Educational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6983 , vital:21189
- Description: Staff, previously employed by Public Technical and Vocation Education and Training (TVET) Colleges, migrated (transferred) to the Department of Higher Education and Training (DHET) in terms of Section 197 of the Labour Relations Act. This treatise investigates the legal consequences of the migration of the staff from the fifty (50) TVET Colleges to DHET and focuses on the different categories of staff. The conditions of service of all the categories of staff before migration are compared with that after the migration. Meaningful recommendations are made about negotiations that should take place in the respective bargaining chambers in order to ensure a smooth transition that will prevent unnecessary legal consequences in future. The treatise furthermore analyses the legal consequences of staff, employed by temporary employment services to perform outsourced functions at TVET Colleges, who did not migrate to DHET. The legal implications of these members of staff is debated and evaluated. The treatise also discusses the performance management system and the changes from the integrated quality management system of lecturers to the performance management development system of public servants. TVET Colleges absorb the employment costs (as a separate employer) to ensure that there is growth in the Full Time Equivalents of Ministerial programmes, funded by DHET. The treatise makes meaningful recommendations to the new employer (DHET) with regard to the appointment of staff to conduct ministerial programmes and the overtime remuneration of current staff that willingly agree to work overtime but are not fairly remunerated by DHET. The treatise also considers the second phase of the migration process, namely the development of a blueprint organogram and the development of job descriptions for the different functions identified on the organogram. The process should ideally be followed by a restructuring process where staff are placed in identified functions and must be capacitated to perform the functions adequately. This process will ensure alignment of functions in the fifty TVET Colleges. Finally, the treatise notes the issue of workplace discipline at the TVET College and the definition of the workplace. It offers a proposal to the DHET to negotiate with the unions about defining the workplace as this has a legal consequence for attaining the objective of sound labour relations. It make meaningful recommendations about the overlapping regulatory requirements applicable to the TVET College as a legal person and DHET as an employer.
- Full Text:
- Date Issued: 2016
The legal protection of foreign direct investment in the new millennium :a critical assessment with a focus on South Africa and Zimbabwe
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
- Date Issued: 2016
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
- Date Issued: 2016
The Rights of victims of crime in South Africa
- Nkukwana , Zingisile Wiseman
- Authors: Nkukwana , Zingisile Wiseman
- Date: 2016
- Subjects: Victims of crimes -- South Africa Victims of crimes -- Civil rights -- South Africa Crime -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12627 , vital:27100
- Description: There is a perception among victims of crime, and people in general, in South Africa that the country’s laws favour and protect offenders. These people believe that offenders have more rights than victims which are derived from the Constitution of the country, and other legislative Acts of parliament. This view may sometimes lead to vigilantism and a total disregard of the law. The study will show that victims do have rights in the country’s legislations. The study briefly explains the sources of such laws, like the Constitution, the Victims Charter and selected provisions of some Acts of parliament. It is a fact that the section 35 of the Constitution provides in detail, the rights of the arrested, detained and accused. It is also submitted persons that there is no specific provision that talks about the rights of the victims of crime. However, that does not mean that such victims do not have rights in terms of the constitution. The rights of victims of crime are seen during the courts’ interpretation and application of rights mentioned in the Bill of Rights. The use of words like “everyone” and “any person” in the Bill of Rights also refers to victims of crime. Therefore, the Constitution is not victim-biased and offender-friendly. The Constitution protects everybody because it seeks to uphold the values of human dignity, equality, freedom and the African concept of ubuntu. The study discusses briefly the rights of victims as adopted by the Victims’ Charter. The Charter lists these rights, but does not explain how such rights are to be achieved. South Africa also developed a document called the Minimum Standards for Services for Victims of Crime which indicates how each right is to be achieved. The study also shows that South Africa had developed some Acts of parliament even before the adoption of the Victims Charter. South Africa claims that the Victims’ Charter is compliant with the Constitution and the United Nations Declaration of Basic Principles of Justice Abuse of Power of 1985. It is submitted that this statement is not entirely correct, especially with regards to the provision that deals with compensation. South Africa did not define compensation as defined by the United Nations Declaration. This can be seen as a dismal failure by South Africa to abide by the United Nations Declaration and this has resulted in more harm suffered by victims of crime. The study also discusses how rape victims benefit through the use of Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. This begins with the changing of the definition of rape. The Act also deals with how rape victims can access antiretroviral drugs to prevent HIV/Aids infection. It explains limitations on the right to privacy of the accused, especially to compel him or her to undergo an HIV test. The HIV positive status of the accused can be used as an aggravating factor during sentencing in terms of UNAIDS policies. S v Nyalungu 2005 (JOL) 13254 (T) is a leading case in South Africa showing compliance with UNAIDS policies. Restorative justice mechanisms have been discussed to show positive movement by South Africa from a retributive justice system to a restorative justice system. The advantages of such mechanisms for victims have been discussed. The study also describes briefly some selected provisions of the Criminal Procedure Act of 1977 and how these provisions benefit victims of crime. These include sections 153, 170A, 297, 299A, 300 and 301. The study highlights some challenges that still exist and what innovations can be made. This includes recommendations which can be made to benefit victims of crime further. For example, an apology can be used as one of the important principles in the restorative justice system. It is submitted and recommended that truth and apology go hand in glove and the basic elements of forgiveness. South Africa can pride itself with regards to this approach especially during the Truth and Reconciliation Commission which was established in post-apartheid South Africa. The study concludes by saying that South Africa should set up a victim-compensation scheme. It is submitted that South Africa can afford such a scheme despite the problems identified.
- Full Text:
- Date Issued: 2016
- Authors: Nkukwana , Zingisile Wiseman
- Date: 2016
- Subjects: Victims of crimes -- South Africa Victims of crimes -- Civil rights -- South Africa Crime -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12627 , vital:27100
- Description: There is a perception among victims of crime, and people in general, in South Africa that the country’s laws favour and protect offenders. These people believe that offenders have more rights than victims which are derived from the Constitution of the country, and other legislative Acts of parliament. This view may sometimes lead to vigilantism and a total disregard of the law. The study will show that victims do have rights in the country’s legislations. The study briefly explains the sources of such laws, like the Constitution, the Victims Charter and selected provisions of some Acts of parliament. It is a fact that the section 35 of the Constitution provides in detail, the rights of the arrested, detained and accused. It is also submitted persons that there is no specific provision that talks about the rights of the victims of crime. However, that does not mean that such victims do not have rights in terms of the constitution. The rights of victims of crime are seen during the courts’ interpretation and application of rights mentioned in the Bill of Rights. The use of words like “everyone” and “any person” in the Bill of Rights also refers to victims of crime. Therefore, the Constitution is not victim-biased and offender-friendly. The Constitution protects everybody because it seeks to uphold the values of human dignity, equality, freedom and the African concept of ubuntu. The study discusses briefly the rights of victims as adopted by the Victims’ Charter. The Charter lists these rights, but does not explain how such rights are to be achieved. South Africa also developed a document called the Minimum Standards for Services for Victims of Crime which indicates how each right is to be achieved. The study also shows that South Africa had developed some Acts of parliament even before the adoption of the Victims Charter. South Africa claims that the Victims’ Charter is compliant with the Constitution and the United Nations Declaration of Basic Principles of Justice Abuse of Power of 1985. It is submitted that this statement is not entirely correct, especially with regards to the provision that deals with compensation. South Africa did not define compensation as defined by the United Nations Declaration. This can be seen as a dismal failure by South Africa to abide by the United Nations Declaration and this has resulted in more harm suffered by victims of crime. The study also discusses how rape victims benefit through the use of Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. This begins with the changing of the definition of rape. The Act also deals with how rape victims can access antiretroviral drugs to prevent HIV/Aids infection. It explains limitations on the right to privacy of the accused, especially to compel him or her to undergo an HIV test. The HIV positive status of the accused can be used as an aggravating factor during sentencing in terms of UNAIDS policies. S v Nyalungu 2005 (JOL) 13254 (T) is a leading case in South Africa showing compliance with UNAIDS policies. Restorative justice mechanisms have been discussed to show positive movement by South Africa from a retributive justice system to a restorative justice system. The advantages of such mechanisms for victims have been discussed. The study also describes briefly some selected provisions of the Criminal Procedure Act of 1977 and how these provisions benefit victims of crime. These include sections 153, 170A, 297, 299A, 300 and 301. The study highlights some challenges that still exist and what innovations can be made. This includes recommendations which can be made to benefit victims of crime further. For example, an apology can be used as one of the important principles in the restorative justice system. It is submitted and recommended that truth and apology go hand in glove and the basic elements of forgiveness. South Africa can pride itself with regards to this approach especially during the Truth and Reconciliation Commission which was established in post-apartheid South Africa. The study concludes by saying that South Africa should set up a victim-compensation scheme. It is submitted that South Africa can afford such a scheme despite the problems identified.
- Full Text:
- Date Issued: 2016
A comparison of the petroleum legislation of gabon and South Africa as instruments of development
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
An analysis of "self-determination" in international law : the case of South Sudan
- Authors: Zimuto, Prince Charles
- Date: 2015
- Subjects: Self-determination, National Decolonization -- South Sudan Sudan -- Politics and government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5697 , vital:29364
- Description: This research intends to investigate the scope and applicability of the concept of ‘self-determination’ outside the context of decolonisation using South Sudan as a case study. Demands for the exercise of the right to self-determination are widespread. These are vehemently resisted by states who view the concept of ‘self-determination’ as a potential source of territorial disintegration. International instruments which provide for the right to self-determination also discourage the impairment of the territorial integrity of states in the name of self-determination. The problem faced in international law is therefore how to balance the right to self-determination with the principle of territorial integrity. The study reveals that the general understanding is that outside the context of decolonisation the right to self-determination may be exercised within the territorial boundaries of a state without compromising the territorial integrity of a state. The internal exercise of the right to self-determination entails human rights protection, participation in the political affairs of the state and autonomy arrangements. This general understanding is however problematic where a state systemically violates the rights of its people and denies them political participation in the affairs of the state. The people of South Sudan found themselves in such a situation from the time when Sudan gained independence from British colonial rule. Despite a number of negotiations with the government of Sudan, the people of South Sudan continued to be marginalised and their rights violated with impunity. They then demanded to exercise their right to self-determination externally and eventually they seceded from Sudan through the framework created by the Comprehensive Peace Agreement of 2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial self-determination approach to the understanding of post-colonial self-determination. In terms of this approach when people are denied the right to exercise their right to self-determination internally, or their rights are deliberately and systemically violated, they may exercise their right to self-determination externally and secede.
- Full Text:
- Date Issued: 2015
- Authors: Zimuto, Prince Charles
- Date: 2015
- Subjects: Self-determination, National Decolonization -- South Sudan Sudan -- Politics and government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5697 , vital:29364
- Description: This research intends to investigate the scope and applicability of the concept of ‘self-determination’ outside the context of decolonisation using South Sudan as a case study. Demands for the exercise of the right to self-determination are widespread. These are vehemently resisted by states who view the concept of ‘self-determination’ as a potential source of territorial disintegration. International instruments which provide for the right to self-determination also discourage the impairment of the territorial integrity of states in the name of self-determination. The problem faced in international law is therefore how to balance the right to self-determination with the principle of territorial integrity. The study reveals that the general understanding is that outside the context of decolonisation the right to self-determination may be exercised within the territorial boundaries of a state without compromising the territorial integrity of a state. The internal exercise of the right to self-determination entails human rights protection, participation in the political affairs of the state and autonomy arrangements. This general understanding is however problematic where a state systemically violates the rights of its people and denies them political participation in the affairs of the state. The people of South Sudan found themselves in such a situation from the time when Sudan gained independence from British colonial rule. Despite a number of negotiations with the government of Sudan, the people of South Sudan continued to be marginalised and their rights violated with impunity. They then demanded to exercise their right to self-determination externally and eventually they seceded from Sudan through the framework created by the Comprehensive Peace Agreement of 2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial self-determination approach to the understanding of post-colonial self-determination. In terms of this approach when people are denied the right to exercise their right to self-determination internally, or their rights are deliberately and systemically violated, they may exercise their right to self-determination externally and secede.
- Full Text:
- Date Issued: 2015
Dismissal of members of the South African Police Service for criminal convictions
- Authors: Deysel, Petrus Gerhardus
- Date: 2015
- Subjects: Employees -- Dismissal of -- South Africa , Police corruption -- South Africa , Judgments, Criminal -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6084 , vital:21037
- Description: The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.
- Full Text:
- Date Issued: 2015
- Authors: Deysel, Petrus Gerhardus
- Date: 2015
- Subjects: Employees -- Dismissal of -- South Africa , Police corruption -- South Africa , Judgments, Criminal -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6084 , vital:21037
- Description: The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.
- Full Text:
- Date Issued: 2015
Expanding access to essential medicines through the right to health: a case study of South Africa
- Authors: Motamakore, Shelton Tapiwa
- Date: 2015
- Subjects: Right to health -- South Africa Medical care -- Law and legislation -- South Africa AIDS (Disease) -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5620 , vital:29352
- Description: Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
- Full Text:
- Date Issued: 2015
- Authors: Motamakore, Shelton Tapiwa
- Date: 2015
- Subjects: Right to health -- South Africa Medical care -- Law and legislation -- South Africa AIDS (Disease) -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5620 , vital:29352
- Description: Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
- Full Text:
- Date Issued: 2015
Exploitation of non-living marine resources within national jurisdiction in East Africa
- Authors: Ntola, Yamkela Siqhamo
- Date: 2015
- Subjects: Economic zones (Law of the sea) Territorial waters
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/10253 , vital:26646
- Description: This dissertation involves an analysis and discussion of the legal regime governing the exploitation of non-living marine resources within national jurisdiction in East Africa. This is in light of the relatively recent offshore oil and gas discoveries off the coasts of Mozambique and Tanzania which have resulted in offshore exploration activities along the Western Indian Ocean (including the Red Sea) in pursuit of these hydrocarbons. Before delving into legal analysis and discussion, the dissertation departs by providing background on the 1982 United Nations Law of the Sea Convention (LOSC)2 which is the international legal regime governing maritime spaces and the contributions made by, inter alia, East African coastal States to bring it about. From here, the dissertation ventures into an analysis and discussion of the legal zones claimed by East African coastal States within which exploitation activities may occur. This part of the discussion involves, among other things, an in depth analysis of the practices of East African coastal States as far as establishing maritime zones in terms of international law. The dissertation then proceeds to discuss which East African coastal States have delimited their maritime zones where they overlap with neighbouring States with adjacent and/or opposite coasts. The discussion highlights which States, in terms of international law, have clearly defined the ambit of their maritime jurisdiction by establishing a delimitation boundary where claims to maritime zones overlapped. This part of the dissertation also discusses which States have not delimited their overlapping maritime zones and the reasons for the lack of delimitation. Following this, the dissertation moves on to discuss the LOSC provisions applicable to exploiting non-living resources, and analyse whether the laws of East African coastal States that pertain to exploiting these resources adequately give effect to LOSC. Finally, in light of the above analysis and discussions, the dissertation moves on to establish if whether or not the legal infrastructure of East African coastal States is adequate for exploiting non-living resources within their national jurisdiction. Generally, the findings reflect favourably on the legal framework of East African coastal States. However, the pressing issue is the practices of some States in respect of claiming certain maritime zones and where necessary, not delimiting these zones. This results in uncertainty as to the maritime jurisdiction of a coastal State, especially with resources such as oil and gas which may straddle across boundaries. Moreover, it creates conflict and as such, threatens peace and security in the region as well as stunt economic and socio-economic development. As such, this dissertation, on the one hand, reflects the advancement of East African coastal States from contributing towards the adoption and coming into effect of LOSC, as well as giving effect to it domestically as far as exploiting non-living resources within national jurisdiction is concerned. On the other hand, it highlights the work that lays ahead for East African coastal States in order for them to fully enjoy their right.
- Full Text:
- Date Issued: 2015
- Authors: Ntola, Yamkela Siqhamo
- Date: 2015
- Subjects: Economic zones (Law of the sea) Territorial waters
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/10253 , vital:26646
- Description: This dissertation involves an analysis and discussion of the legal regime governing the exploitation of non-living marine resources within national jurisdiction in East Africa. This is in light of the relatively recent offshore oil and gas discoveries off the coasts of Mozambique and Tanzania which have resulted in offshore exploration activities along the Western Indian Ocean (including the Red Sea) in pursuit of these hydrocarbons. Before delving into legal analysis and discussion, the dissertation departs by providing background on the 1982 United Nations Law of the Sea Convention (LOSC)2 which is the international legal regime governing maritime spaces and the contributions made by, inter alia, East African coastal States to bring it about. From here, the dissertation ventures into an analysis and discussion of the legal zones claimed by East African coastal States within which exploitation activities may occur. This part of the discussion involves, among other things, an in depth analysis of the practices of East African coastal States as far as establishing maritime zones in terms of international law. The dissertation then proceeds to discuss which East African coastal States have delimited their maritime zones where they overlap with neighbouring States with adjacent and/or opposite coasts. The discussion highlights which States, in terms of international law, have clearly defined the ambit of their maritime jurisdiction by establishing a delimitation boundary where claims to maritime zones overlapped. This part of the dissertation also discusses which States have not delimited their overlapping maritime zones and the reasons for the lack of delimitation. Following this, the dissertation moves on to discuss the LOSC provisions applicable to exploiting non-living resources, and analyse whether the laws of East African coastal States that pertain to exploiting these resources adequately give effect to LOSC. Finally, in light of the above analysis and discussions, the dissertation moves on to establish if whether or not the legal infrastructure of East African coastal States is adequate for exploiting non-living resources within their national jurisdiction. Generally, the findings reflect favourably on the legal framework of East African coastal States. However, the pressing issue is the practices of some States in respect of claiming certain maritime zones and where necessary, not delimiting these zones. This results in uncertainty as to the maritime jurisdiction of a coastal State, especially with resources such as oil and gas which may straddle across boundaries. Moreover, it creates conflict and as such, threatens peace and security in the region as well as stunt economic and socio-economic development. As such, this dissertation, on the one hand, reflects the advancement of East African coastal States from contributing towards the adoption and coming into effect of LOSC, as well as giving effect to it domestically as far as exploiting non-living resources within national jurisdiction is concerned. On the other hand, it highlights the work that lays ahead for East African coastal States in order for them to fully enjoy their right.
- Full Text:
- Date Issued: 2015
Head of state immunity under the Rome statute of the International Criminal Court: an analysis of the contemporary legal issues and the African Union’s response to the prosecution of African heads of state
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
Inherent requirements of a job as a defence to unfair discrimination
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
Legal representation at internal disciplinary enquiries: the CCMA and bargaining councils
- Authors: Webb, Brandon
- Date: 2015
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10299 , http://hdl.handle.net/10948/d1021066
- Description: The right to legal representation at internal disciplinary hearings and arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining councils, where the reason for dismissal relates to misconduct or incapacity is a topic that is raised continuously and often debated. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment. This judgment alters one’s view and clarifies the uncertainties that were created around Rule 25 of the CCMA rules, it also brings a different perspective to the matter, but it will however continue to ignite significant interest. There is no automatic right to legal representation at disciplinary hearings, at the CCMA, and at bargaining councils where disputes involve conduct or capacity and this is the very reason why it is a contentious matter for all parties to grapple with. The dismissal of an employee for misconduct may not be significant to the employer, but the employee’s job is his major asset, and losing his employment is a serious matter to contend with. Lawyers are said to make the process legalistic and expensive, and are blamed for causing delays in the proceedings due to their unavailability and the approach that they adopt. Allowing legal representation places individual employees and small businesses on the back foot because of the costs. Section 23(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides everyone with the right to fair labour practices, and section 185 of the Labour Relations Act 66 of 1995 gives effect to this right and specifies, amongst others, that an employee has the right not to be unfairly dismissed. At internal disciplinary hearings, the Labour Relations Act 66 of 1995 is silent as to what the employee’s rights are with regards to legal representation and the general rule is that legal representation is not permitted, unless the employer’s disciplinary code and procedure or the employee’s contract allows for it, but usually an employee may only be represented by a fellow employee or trade union representative, but not by a legal representative. In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani, the Supreme Court of Appeal held that there exists no right in terms of the common law to legal representation in tribunals other than in courts of law. However, both the common law and PAJA concede that in certain situations it may be unfair to deny a party legal representation. Currently the position in South Africa is that an employee facing disciplinary proceedings can put forward a request for legal representation and the chairperson of the disciplinary hearing will have the discretion to allow or refuse the request. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal found that the South African law does not recognise an absolute right to legal representation in fora other than courts of law, and a constitutional right to legal representation only arises in respect of criminal matters.
- Full Text:
- Date Issued: 2015
- Authors: Webb, Brandon
- Date: 2015
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10299 , http://hdl.handle.net/10948/d1021066
- Description: The right to legal representation at internal disciplinary hearings and arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining councils, where the reason for dismissal relates to misconduct or incapacity is a topic that is raised continuously and often debated. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment. This judgment alters one’s view and clarifies the uncertainties that were created around Rule 25 of the CCMA rules, it also brings a different perspective to the matter, but it will however continue to ignite significant interest. There is no automatic right to legal representation at disciplinary hearings, at the CCMA, and at bargaining councils where disputes involve conduct or capacity and this is the very reason why it is a contentious matter for all parties to grapple with. The dismissal of an employee for misconduct may not be significant to the employer, but the employee’s job is his major asset, and losing his employment is a serious matter to contend with. Lawyers are said to make the process legalistic and expensive, and are blamed for causing delays in the proceedings due to their unavailability and the approach that they adopt. Allowing legal representation places individual employees and small businesses on the back foot because of the costs. Section 23(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides everyone with the right to fair labour practices, and section 185 of the Labour Relations Act 66 of 1995 gives effect to this right and specifies, amongst others, that an employee has the right not to be unfairly dismissed. At internal disciplinary hearings, the Labour Relations Act 66 of 1995 is silent as to what the employee’s rights are with regards to legal representation and the general rule is that legal representation is not permitted, unless the employer’s disciplinary code and procedure or the employee’s contract allows for it, but usually an employee may only be represented by a fellow employee or trade union representative, but not by a legal representative. In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani, the Supreme Court of Appeal held that there exists no right in terms of the common law to legal representation in tribunals other than in courts of law. However, both the common law and PAJA concede that in certain situations it may be unfair to deny a party legal representation. Currently the position in South Africa is that an employee facing disciplinary proceedings can put forward a request for legal representation and the chairperson of the disciplinary hearing will have the discretion to allow or refuse the request. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal found that the South African law does not recognise an absolute right to legal representation in fora other than courts of law, and a constitutional right to legal representation only arises in respect of criminal matters.
- Full Text:
- Date Issued: 2015
Regulatory aspects of carbon credits and carbon markets
- Van Huyssteen, Roelof Cornelis
- Authors: Van Huyssteen, Roelof Cornelis
- Date: 2015
- Subjects: Climatic changes -- Law and legislation , Climate change mitigation -- South Africa , Climatic changes -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5086 , vital:20801
- Description: Regulating carbon markets in order to fight the effects of climate change has in recent years become an integral part of many economies around the world. Ensuring that policymakers implement market-based climate change legislation according to international best practice is an essential part to guarantee that a carbon market system operates smoothly within a country’s economy. There are many opportunities that exist in South Africa towards developing a lucrative carbon market; however, the information to implement such a system is hard to come by and complex to analyse. This dissertation will aim to shed some light on this relatively new field of the law as it will provide an overview of international best practice within the carbon market sphere. Furthermore, this dissertation will examine the legal nature of a carbon credit; analyse international instruments regulating carbon markets and discuss existing South African policies and legislation related to climate change and carbon markets. This will lead to the ultimate objective of this dissertation: to propose a possible framework for the regulation of a South African carbon market based upon international best practice. This dissertation revealed the imperative need for South African policymakers to implement legislation to conform to international best practice within carbon markets. In this regard the dissertation also revealed that the infrastructure to regulate such a market already exists within South Africa. Only subtle changes to these infrastructure systems will be required in order for to accommodate a functioning carbon market. The study revealed that the only way to convince entities around the world to emit fewer emissions and to contribute towards the fight against climate change is to attach a monetary value to emissions. Associating a price to carbon is the only way to sanction entities that produce emissions and compensate entities that mitigate emissions. A carbon tax coupled with a carbon offset mechanism, as opposed to a emissions trading scheme, would be the best option with regards to establishing a South African carbon policy. This will ensure a fair playing field, as carbon tax liable entities would be held responsible to pay the same fixed price per ton of carbon that they emit. Coupling the carbon tax with a carbon offset mechanism, trading with carbon credits, will incentivise companies to invest in “greener” technologies and to emit fewer emissions. This dissertation revealed that international best practice in the carbon market sphere, still poses significant difficulties such as price volatility associated with carbon credits; validation and verification inconsistencies within the different carbon standards; and supply and demand fluctuations. These difficulties where highlighted in this dissertation and solutions relating to these difficulties were discussed. The time has come for South Africa to enter the carbon market sphere, whether it be through the introduction of a carbon tax or otherwise. This dissertation illustrates that the infrastructure and stakeholders associated to a South African carbon market needs to be developed. If, when and how the government will actually implement such a carbon market system, remains a question to be answered.
- Full Text:
- Date Issued: 2015
- Authors: Van Huyssteen, Roelof Cornelis
- Date: 2015
- Subjects: Climatic changes -- Law and legislation , Climate change mitigation -- South Africa , Climatic changes -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5086 , vital:20801
- Description: Regulating carbon markets in order to fight the effects of climate change has in recent years become an integral part of many economies around the world. Ensuring that policymakers implement market-based climate change legislation according to international best practice is an essential part to guarantee that a carbon market system operates smoothly within a country’s economy. There are many opportunities that exist in South Africa towards developing a lucrative carbon market; however, the information to implement such a system is hard to come by and complex to analyse. This dissertation will aim to shed some light on this relatively new field of the law as it will provide an overview of international best practice within the carbon market sphere. Furthermore, this dissertation will examine the legal nature of a carbon credit; analyse international instruments regulating carbon markets and discuss existing South African policies and legislation related to climate change and carbon markets. This will lead to the ultimate objective of this dissertation: to propose a possible framework for the regulation of a South African carbon market based upon international best practice. This dissertation revealed the imperative need for South African policymakers to implement legislation to conform to international best practice within carbon markets. In this regard the dissertation also revealed that the infrastructure to regulate such a market already exists within South Africa. Only subtle changes to these infrastructure systems will be required in order for to accommodate a functioning carbon market. The study revealed that the only way to convince entities around the world to emit fewer emissions and to contribute towards the fight against climate change is to attach a monetary value to emissions. Associating a price to carbon is the only way to sanction entities that produce emissions and compensate entities that mitigate emissions. A carbon tax coupled with a carbon offset mechanism, as opposed to a emissions trading scheme, would be the best option with regards to establishing a South African carbon policy. This will ensure a fair playing field, as carbon tax liable entities would be held responsible to pay the same fixed price per ton of carbon that they emit. Coupling the carbon tax with a carbon offset mechanism, trading with carbon credits, will incentivise companies to invest in “greener” technologies and to emit fewer emissions. This dissertation revealed that international best practice in the carbon market sphere, still poses significant difficulties such as price volatility associated with carbon credits; validation and verification inconsistencies within the different carbon standards; and supply and demand fluctuations. These difficulties where highlighted in this dissertation and solutions relating to these difficulties were discussed. The time has come for South Africa to enter the carbon market sphere, whether it be through the introduction of a carbon tax or otherwise. This dissertation illustrates that the infrastructure and stakeholders associated to a South African carbon market needs to be developed. If, when and how the government will actually implement such a carbon market system, remains a question to be answered.
- Full Text:
- Date Issued: 2015
Sidumo revisited
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
Substantive equality and the defence of affirmative-action
- Keith-Bandath, Rasheed Ethan
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
Termination of the contract of employment not constituting dismissal
- Authors: Sipuka, Sibongile
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10258 , http://hdl.handle.net/10948/d1021152
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances
- Full Text:
- Date Issued: 2015
- Authors: Sipuka, Sibongile
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10258 , http://hdl.handle.net/10948/d1021152
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances
- Full Text:
- Date Issued: 2015
Termination of the contract of employment not constituting dismissal
- Sipuka, Sibongile, Supervisor details
- Authors: Sipuka, Sibongile , Supervisor details
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4811 , vital:20701
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.
- Full Text:
- Date Issued: 2015
- Authors: Sipuka, Sibongile , Supervisor details
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4811 , vital:20701
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.
- Full Text:
- Date Issued: 2015