Legal remedies against corruption: lessons from Guatemala
- Cordell, Cameron George Thomas
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
Regulation of minimum wages and minimum conditions of employment in the citrus industry in the Gamtoos river valley
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
Shortcomimgs of the criminal law (sexual offences and related matters) amendment act
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
The application of the law of evidence in disciplinary proceedings and proceedings before the CCMA and bargaining councils
- Jacobs, Clint Eveleigh, Thesis Advisor
- Authors: Jacobs, Clint Eveleigh , Thesis Advisor
- Date: 2019
- Subjects: Evidence (Law) -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40095 , vital:35754
- Description: Humanity has since time immemorial tried to arrange and structure its societies and communities. It follows that most, if not all societies’ function within a body of rules. Governments put laws in place to ensure that order is maintained and they are developed over time and implemented as the needs of a particular society evolve. Law may be divided into substantive law and procedural law. The law of evidence forms an integral part of procedural law and consists of a compilation of legal rules that have been used by courts and other forums in order to ensure that consistent and fair processes are followed and standards maintained in courts when facts are to be determined.2 It sets out the framework for how the evidence of witnesses must be dealt with and also sets out how it should be interpreted. Furthermore, it prescribes the assessment and evaluation of evidentiary material. It is imperative that rules of evidence be in place in order to protect the integrity of the proceedings and to prevent unfairness. The law of evidence thus forms an integral part of the law of procedure. Although South African common law is Roman-Dutch Law, the South African law of evidence has originally been incorporated into South African law from English law and has been developed over the years through legislation and court judgments.3 The law of evidence is applicable to both civil and criminal proceedings. In fact, rules of evidence come into play in virtually all courts, tribunals and forums where the objective is to resolve some or other legal dispute. This treatise focuses on aspects relating to the rules of evidence, with specific reference to hearsay evidence, unconstitutionally obtained evidence, polygraph testing by employers, searches and seizures in the workplace and entrapment in the workplace.
- Full Text:
- Date Issued: 2019
- Authors: Jacobs, Clint Eveleigh , Thesis Advisor
- Date: 2019
- Subjects: Evidence (Law) -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40095 , vital:35754
- Description: Humanity has since time immemorial tried to arrange and structure its societies and communities. It follows that most, if not all societies’ function within a body of rules. Governments put laws in place to ensure that order is maintained and they are developed over time and implemented as the needs of a particular society evolve. Law may be divided into substantive law and procedural law. The law of evidence forms an integral part of procedural law and consists of a compilation of legal rules that have been used by courts and other forums in order to ensure that consistent and fair processes are followed and standards maintained in courts when facts are to be determined.2 It sets out the framework for how the evidence of witnesses must be dealt with and also sets out how it should be interpreted. Furthermore, it prescribes the assessment and evaluation of evidentiary material. It is imperative that rules of evidence be in place in order to protect the integrity of the proceedings and to prevent unfairness. The law of evidence thus forms an integral part of the law of procedure. Although South African common law is Roman-Dutch Law, the South African law of evidence has originally been incorporated into South African law from English law and has been developed over the years through legislation and court judgments.3 The law of evidence is applicable to both civil and criminal proceedings. In fact, rules of evidence come into play in virtually all courts, tribunals and forums where the objective is to resolve some or other legal dispute. This treatise focuses on aspects relating to the rules of evidence, with specific reference to hearsay evidence, unconstitutionally obtained evidence, polygraph testing by employers, searches and seizures in the workplace and entrapment in the workplace.
- Full Text:
- Date Issued: 2019
The enforceability of by-laws of district municipalities on local municipalities with specific reference to solid waste disposal
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
The impact of declining trade union membership on collective bargaining
- Authors: Nombembe, Vuyani
- Date: 2019
- Subjects: Labor unions -- South Africa , Collective bargaining -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42814 , vital:36694
- Description: Trade unions play an important role in the South African labour relations. Power relations in the workplace favour the employers in terms of decision-making due to the resources that employers have at their disposal, as compared to single employees. In order for employees to be at par with employers during collective bargaining, they join or form trade unions. In South Africa for example, the apartheid government was against trade unions as they were viewed as a threat to the hegemony of the apartheid regime. The democratic dispensation that was ushered in, 1994, sought to change that through a tripartite arrangement between employees, employers and the government. This was done to ensure that trade unions become part of the decision making process on workplace related matters. The South African Constitution of 1996 states that every employee has the right to form and join a trade union and participate in the activities and programmes of a trade union. Trade unions are also able to influence policy related decisions as they participate in decision-making bodies like the National Economic Development and Labour Council (NEDLAC) and the International Labour Organisation (ILO). Government has enacted legislation that gives effect to the rights that are enshrined in the Constitution. Through protection afforded by legislation, trade unions are able to recruit members in different sectors and with sufficient sector representation are able to form sector specific Bargaining Councils with Employers’ Organisations representing such sectors, that are able to negotiate terms and conditions of employment for employees in that sector. This study considers and evaluates the rights conferred to trade unions by the Constitution and legislation. The study focuses on the impact of dwindling trade union membership numbers on collective bargaining in South Africa and makes a brief comparison with the European Union (EU). It examines the history of trade unions and the causes of the reduction of trade union membership numbers in South Africa and the EU. Case law is considered in order to gain an understanding of the changing collective bargaining landscape in South Africa. Consideration is given to some of the challenges faced by trade unions in seeking new members and this study makes recommendations of measures that could be put in place to assist trade unions increase their presence in the workplace.
- Full Text:
- Date Issued: 2019
- Authors: Nombembe, Vuyani
- Date: 2019
- Subjects: Labor unions -- South Africa , Collective bargaining -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42814 , vital:36694
- Description: Trade unions play an important role in the South African labour relations. Power relations in the workplace favour the employers in terms of decision-making due to the resources that employers have at their disposal, as compared to single employees. In order for employees to be at par with employers during collective bargaining, they join or form trade unions. In South Africa for example, the apartheid government was against trade unions as they were viewed as a threat to the hegemony of the apartheid regime. The democratic dispensation that was ushered in, 1994, sought to change that through a tripartite arrangement between employees, employers and the government. This was done to ensure that trade unions become part of the decision making process on workplace related matters. The South African Constitution of 1996 states that every employee has the right to form and join a trade union and participate in the activities and programmes of a trade union. Trade unions are also able to influence policy related decisions as they participate in decision-making bodies like the National Economic Development and Labour Council (NEDLAC) and the International Labour Organisation (ILO). Government has enacted legislation that gives effect to the rights that are enshrined in the Constitution. Through protection afforded by legislation, trade unions are able to recruit members in different sectors and with sufficient sector representation are able to form sector specific Bargaining Councils with Employers’ Organisations representing such sectors, that are able to negotiate terms and conditions of employment for employees in that sector. This study considers and evaluates the rights conferred to trade unions by the Constitution and legislation. The study focuses on the impact of dwindling trade union membership numbers on collective bargaining in South Africa and makes a brief comparison with the European Union (EU). It examines the history of trade unions and the causes of the reduction of trade union membership numbers in South Africa and the EU. Case law is considered in order to gain an understanding of the changing collective bargaining landscape in South Africa. Consideration is given to some of the challenges faced by trade unions in seeking new members and this study makes recommendations of measures that could be put in place to assist trade unions increase their presence in the workplace.
- Full Text:
- Date Issued: 2019
The interests of justice in bail proceedings
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019
The legal consequences of unprotected strikes
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
The legalisation of prostitution in South Africa
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019
The protection against child labour in South Africa
- Authors: Abrahams, Collis
- Date: 2019
- Subjects: Child labor
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40204 , vital:35986
- Description: This treatise seeks to describe the legal protection of children against child labour in South Africa. It does so within the context of international-law-protection in the form of Conventions of the International Labour Organisation. The treatise distinguishes between the concepts of child labour and child work and traces the history of international law prohibiting and regulating child labour. The two most important ILO Conventions, Convention 138 of 1973 and 182 of 1998 are considered in some detail before the national legislature is explained and analysed. From the discussion it is apparent that South Africa is giving effect to the applicable ILO Conventions. Not only does national legislation prohibit child labour, the state also adopted nation-wide programmes to eradicate child labour. Despite the efforts there is still room for improvement. The fight to eradicate child labour must continue!
- Full Text:
- Date Issued: 2019
- Authors: Abrahams, Collis
- Date: 2019
- Subjects: Child labor
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40204 , vital:35986
- Description: This treatise seeks to describe the legal protection of children against child labour in South Africa. It does so within the context of international-law-protection in the form of Conventions of the International Labour Organisation. The treatise distinguishes between the concepts of child labour and child work and traces the history of international law prohibiting and regulating child labour. The two most important ILO Conventions, Convention 138 of 1973 and 182 of 1998 are considered in some detail before the national legislature is explained and analysed. From the discussion it is apparent that South Africa is giving effect to the applicable ILO Conventions. Not only does national legislation prohibit child labour, the state also adopted nation-wide programmes to eradicate child labour. Despite the efforts there is still room for improvement. The fight to eradicate child labour must continue!
- Full Text:
- Date Issued: 2019
Trade union liability for unprotected strike action and violence in furtherance thereof
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
A critical examination of the regulation of fixed term employment services under South African Labour Laws
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
A review of five international forensic reports : fingerprint evidence lessons for South African lawyers
- Authors: Chiwara, Mercy
- Date: 2018
- Subjects: Fingerprints Criminal investigation Forensic sciences
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/10918 , vital:35963
- Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
- Full Text:
- Date Issued: 2018
- Authors: Chiwara, Mercy
- Date: 2018
- Subjects: Fingerprints Criminal investigation Forensic sciences
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/10918 , vital:35963
- Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
- Full Text:
- Date Issued: 2018
An overview of absence without leave, sick absence and absconding in the local government sector
- Authors: Kalawe, Thozama Mavis
- Date: 2018
- Subjects: Absenteeism (Labor) , Local government -- South Africa Civil service -- Labor productivity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30430 , vital:30943
- Description: The treatise will investigate, examine and determine how the three types of absenteeism affects the local government sector, the impact absenteeism has on service delivery. The study will examine how the employers and employees are protected by legislation when confronted with absenteeism. The three types of absenteeism, namely absence without leave, desertion and abuse of sick leave can be considered as misconduct which may result in termination of contract of employment. The treatise will unpack these three types of absenteeism in relation to the provisions applicable in South African legislation, policies and collective agreements of the local government. A comparison of the local government policies with public, and private sector will be considered. The case study of local government will be provided wherein the basic services that are provided by local government will be discussed to give a better understanding of how these three types of absenteeism impact on the delivery of such services. Recommendation will be provided regarding research findings and conclusion drawn from literature review.
- Full Text:
- Date Issued: 2018
- Authors: Kalawe, Thozama Mavis
- Date: 2018
- Subjects: Absenteeism (Labor) , Local government -- South Africa Civil service -- Labor productivity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30430 , vital:30943
- Description: The treatise will investigate, examine and determine how the three types of absenteeism affects the local government sector, the impact absenteeism has on service delivery. The study will examine how the employers and employees are protected by legislation when confronted with absenteeism. The three types of absenteeism, namely absence without leave, desertion and abuse of sick leave can be considered as misconduct which may result in termination of contract of employment. The treatise will unpack these three types of absenteeism in relation to the provisions applicable in South African legislation, policies and collective agreements of the local government. A comparison of the local government policies with public, and private sector will be considered. The case study of local government will be provided wherein the basic services that are provided by local government will be discussed to give a better understanding of how these three types of absenteeism impact on the delivery of such services. Recommendation will be provided regarding research findings and conclusion drawn from literature review.
- Full Text:
- Date Issued: 2018
Automatic unfair dismissal with reference to section 187(1)(c) of the Labour Relations Act
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
Balancing the interests of employer and employee in dismissal for misconduct
- Pillay, Prushothman Subramoney
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
- Full Text:
- Date Issued: 2018
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
- Full Text:
- Date Issued: 2018
Capital v Revenue: the income tax test of intention
- Authors: Haworth, Christi-Anne
- Date: 2018
- Subjects: Income tax -- Law and legislation -- New Zealand , Income tax -- Law and legislation -- South Africa Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- New Zealand Tax planning
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30028 , vital:30811
- Description: The purpose of this research was to identify and comment on various interpretive problems posed by using ‘intention’ as a legal test to classify a taxpayer’s taxable gross income. Using an integrative literature review method, the research provides a detailed discussion of the historical interpretation of this test, and identifies various interpretive problems arising from the inconsistent and differing interpretation of this test by the courts. Having identified that certain jurists and authors take guidance from criminal law in their interpretation of intention, an analysis of the approach in this area of law, as well as in the law of delict is made. The difference between motive and intention forms part of this discussion. The conclusion is drawn that intention as it is used in the criminal law is not an appropriate test to be applied in income tax. Having drawn this conclusion, and expanding on an identified jurisdiction a comparison is drawn between the approach by courts in New Zealand and courts in South Africa regarding the purpose with which a taxpayer acquires an asset or undertakes a transaction. The difference between purpose and intention is expanded upon and explained as it is seen by the courts in this jurisdiction. Throughout the body of the treatise certain recommendations are made, and parallels are drawn between the South African approach and the approach in New Zealand.
- Full Text:
- Date Issued: 2018
- Authors: Haworth, Christi-Anne
- Date: 2018
- Subjects: Income tax -- Law and legislation -- New Zealand , Income tax -- Law and legislation -- South Africa Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- New Zealand Tax planning
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30028 , vital:30811
- Description: The purpose of this research was to identify and comment on various interpretive problems posed by using ‘intention’ as a legal test to classify a taxpayer’s taxable gross income. Using an integrative literature review method, the research provides a detailed discussion of the historical interpretation of this test, and identifies various interpretive problems arising from the inconsistent and differing interpretation of this test by the courts. Having identified that certain jurists and authors take guidance from criminal law in their interpretation of intention, an analysis of the approach in this area of law, as well as in the law of delict is made. The difference between motive and intention forms part of this discussion. The conclusion is drawn that intention as it is used in the criminal law is not an appropriate test to be applied in income tax. Having drawn this conclusion, and expanding on an identified jurisdiction a comparison is drawn between the approach by courts in New Zealand and courts in South Africa regarding the purpose with which a taxpayer acquires an asset or undertakes a transaction. The difference between purpose and intention is expanded upon and explained as it is seen by the courts in this jurisdiction. Throughout the body of the treatise certain recommendations are made, and parallels are drawn between the South African approach and the approach in New Zealand.
- Full Text:
- Date Issued: 2018
Constitutional and human-rights aspects of marine spatial planning
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
Discrimination and dismissal based on age
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
Employee pension and provident fund rights
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018