The protection of children during assert forfeiture procedure
- Authors: Khunou, Lesego
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Children's rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51207 , vital:43221
- Description: As South Africa was transitioning into a new democracy there was an upsurge of organised crimes in the country. In the pursuit of tackling the rise of organised crimes in South Africa which would destabilise the country's economy, the Prevention of Organised Crimes Act was introduced however the act was not only for organised crime, it was for crimes such as money laundering, racketeering and gang activities amongst other crimes. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Khunou, Lesego
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Children's rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51207 , vital:43221
- Description: As South Africa was transitioning into a new democracy there was an upsurge of organised crimes in the country. In the pursuit of tackling the rise of organised crimes in South Africa which would destabilise the country's economy, the Prevention of Organised Crimes Act was introduced however the act was not only for organised crime, it was for crimes such as money laundering, racketeering and gang activities amongst other crimes. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The regulation of renewable ocean energy
- Authors: Kekana, Lerato Caroline
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Renewable energy sources -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51211 , vital:43217
- Description: Energy is one of the vital natural resources that contribute towards an improvement in social and economic development. Environmental issues such as climate change have resulted in the exploitation of renewable energy gaining momentum. Renewable ocean energy is one of the renewable sources that have the potential to assist South Africa to achieve its energy policy goals, which include economic development and the management of energy-related environmental and health impacts. The exploitation and exploration of renewable ocean energy in South Africa raise legal concerns. These concerns are the lack of appropriate legal and regulatory frameworks and the possible conflicts among users in the marine environment that may occur as a result of the exploitation and exploration of renewable ocean energy. This dissertation, therefore, addresses these concerns by providing a critical assessment of the regulation of renewable ocean energy in South Africa. Firstly, it provides an introduction and legal background of renewable ocean energy. It proceeds by critically assessing the international requirements with which South Africa needs to comply regarding renewable ocean energy. Following that, the dissertation provides an analysis of the environment and energy legislation and the extent to which they regulate renewable ocean energy. Lastly, taking into account other existing and future activities in the marine environment, there is a discussion of the marine spatial planning (MSP) and other regulatory measures in so far as they relate to the resolution of the conflict in the context of renewable ocean energy. The conclusion is that the existing legislation does not appropriately regulate renewable ocean energy. As a result, the dissertation proposes how the existing legislation may adequately include renewable ocean energy. Furthermore, it makes recommendations. , Thesis (LLM) -- Faculty of Law, Public Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Kekana, Lerato Caroline
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Renewable energy sources -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51211 , vital:43217
- Description: Energy is one of the vital natural resources that contribute towards an improvement in social and economic development. Environmental issues such as climate change have resulted in the exploitation of renewable energy gaining momentum. Renewable ocean energy is one of the renewable sources that have the potential to assist South Africa to achieve its energy policy goals, which include economic development and the management of energy-related environmental and health impacts. The exploitation and exploration of renewable ocean energy in South Africa raise legal concerns. These concerns are the lack of appropriate legal and regulatory frameworks and the possible conflicts among users in the marine environment that may occur as a result of the exploitation and exploration of renewable ocean energy. This dissertation, therefore, addresses these concerns by providing a critical assessment of the regulation of renewable ocean energy in South Africa. Firstly, it provides an introduction and legal background of renewable ocean energy. It proceeds by critically assessing the international requirements with which South Africa needs to comply regarding renewable ocean energy. Following that, the dissertation provides an analysis of the environment and energy legislation and the extent to which they regulate renewable ocean energy. Lastly, taking into account other existing and future activities in the marine environment, there is a discussion of the marine spatial planning (MSP) and other regulatory measures in so far as they relate to the resolution of the conflict in the context of renewable ocean energy. The conclusion is that the existing legislation does not appropriately regulate renewable ocean energy. As a result, the dissertation proposes how the existing legislation may adequately include renewable ocean energy. Furthermore, it makes recommendations. , Thesis (LLM) -- Faculty of Law, Public Law, 2021
- Full Text: false
- Date Issued: 2021-04
The rights of children in youth care centres
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The substantive fairness of dismissal for operational requirements in the context of collective bargaining
- Authors: Mtshemla, Ntokozo
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51195 , vital:43222
- Description: An employer may wish to change terms and conditions of employment in order to respond to the operational needs of a business. The definition of operational requirements is not limited to initiatives aimed at ensuring the survival of a business but include measures intended to improve its performance. Changes to terms and conditions of employment ordinarily locate themselves within the realm of interest disputes which are mainly resolved through the process of collective bargaining coupled with power play. This means that an employer may not dismiss employees within the context of collective bargaining as a way of compelling compliance with a demand in relation to matters of mutual interest. Section187(1)(c) of the LRA renders any dismissal automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest. The question that arises relates to the interpretation of this section and the impact thereof on the right of the employer to retrench as envisaged in section 188(1)(a)(ii) of the LRA. This reveals the intersection between collective bargaining and dismissals for operational requirements. In other words, changes to terms and conditions of employment equally influence the performance of the business thereby also fall within the definition of operational requirements. The question therefore is when do employers’ economic needs justify a dismissal of employees who rejects changes to terms and conditions of employment? Secondly, whether or not the relevant provisions, and the whole scheme of the LRA, require retrenchments to be the measure of last resort? These issues shall be explored in this treatise with reference to the relevant provisions of the LRA and relevant case law. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mtshemla, Ntokozo
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51195 , vital:43222
- Description: An employer may wish to change terms and conditions of employment in order to respond to the operational needs of a business. The definition of operational requirements is not limited to initiatives aimed at ensuring the survival of a business but include measures intended to improve its performance. Changes to terms and conditions of employment ordinarily locate themselves within the realm of interest disputes which are mainly resolved through the process of collective bargaining coupled with power play. This means that an employer may not dismiss employees within the context of collective bargaining as a way of compelling compliance with a demand in relation to matters of mutual interest. Section187(1)(c) of the LRA renders any dismissal automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest. The question that arises relates to the interpretation of this section and the impact thereof on the right of the employer to retrench as envisaged in section 188(1)(a)(ii) of the LRA. This reveals the intersection between collective bargaining and dismissals for operational requirements. In other words, changes to terms and conditions of employment equally influence the performance of the business thereby also fall within the definition of operational requirements. The question therefore is when do employers’ economic needs justify a dismissal of employees who rejects changes to terms and conditions of employment? Secondly, whether or not the relevant provisions, and the whole scheme of the LRA, require retrenchments to be the measure of last resort? These issues shall be explored in this treatise with reference to the relevant provisions of the LRA and relevant case law. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Workplace forums and the enhancement of collective bargaining
- Authors: Silo, Zama
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51189 , vital:43229
- Description: Historically, workers in South Africa, black and Africans in particular, fought against an oppressive regime and, in the absence of political rights, strikes were mostly violent. Labour legislation was based on racial categorisation and discrimination. There was parallel labour legislation for blacks, and a different one for whites. The legislation for blacks was called the Black Labour Relations Act 48 of 19531 , for whites it was called the Industrial Conciliation Act, it was later renamed the Labour Relations Act 28 of 19562 . Trade unions were racially divided, and black workers mostly were denied the right of joining trade unions. The unions that admitted blacks as members could not become parties to industrial councils. Before 1979, black workers in South Africa did not have access to the collective bargaining system. After that year, the guidelines proposed by the Wiehahn, Commission brought about certain changes. Attempts were made to establish independent labour organisations for black workers, but both the state and employers applied various strategies to undermine these organisations. One of these strategies was the Native Labour Settlement Disputes Act of 1953, which restricted the representation of black workers on worker committees in the workplace and prohibited them from striking. Black workers therefore never utilised these statutory works committees and by 1971, there were only 18 statutory works committees in the country. The Department of Labour indicated that there was a preference for non-statutory works committees because there were no restrictions in respect of their composition, and they provided a structure by means of which workers could be represented.3 Militant action by black labour in the early 1970s led to the promulgation of the Black Labour Relations Regulation Act of 1973.4 This Act was to extend the existing works committee system. Liaison and coordinating committees were set up to restrain activism among the workers and establish an alternative form for trade unions of labour management communication. Where statutory works committees had only consisted of employees, employers could now half the members of the new liaison committees and their chairman. The growth of these committees led to black workers building up a base for a future independent organisation. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Silo, Zama
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51189 , vital:43229
- Description: Historically, workers in South Africa, black and Africans in particular, fought against an oppressive regime and, in the absence of political rights, strikes were mostly violent. Labour legislation was based on racial categorisation and discrimination. There was parallel labour legislation for blacks, and a different one for whites. The legislation for blacks was called the Black Labour Relations Act 48 of 19531 , for whites it was called the Industrial Conciliation Act, it was later renamed the Labour Relations Act 28 of 19562 . Trade unions were racially divided, and black workers mostly were denied the right of joining trade unions. The unions that admitted blacks as members could not become parties to industrial councils. Before 1979, black workers in South Africa did not have access to the collective bargaining system. After that year, the guidelines proposed by the Wiehahn, Commission brought about certain changes. Attempts were made to establish independent labour organisations for black workers, but both the state and employers applied various strategies to undermine these organisations. One of these strategies was the Native Labour Settlement Disputes Act of 1953, which restricted the representation of black workers on worker committees in the workplace and prohibited them from striking. Black workers therefore never utilised these statutory works committees and by 1971, there were only 18 statutory works committees in the country. The Department of Labour indicated that there was a preference for non-statutory works committees because there were no restrictions in respect of their composition, and they provided a structure by means of which workers could be represented.3 Militant action by black labour in the early 1970s led to the promulgation of the Black Labour Relations Regulation Act of 1973.4 This Act was to extend the existing works committee system. Liaison and coordinating committees were set up to restrain activism among the workers and establish an alternative form for trade unions of labour management communication. Where statutory works committees had only consisted of employees, employers could now half the members of the new liaison committees and their chairman. The growth of these committees led to black workers building up a base for a future independent organisation. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Reinforcing the protection of stakeholders’ interests under the South African takeover regulation regime: a comparative assessment from a complementary regulatory perspective.
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-02
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-02
A trade union’s right to strike to acquire organisational rights
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
Application of section 197 of the Labour Relations Act in an insourcing context
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
Audio-Visual and Cyber Evidence in the Context of Criminal Law
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
Dismissal for racist remarks and racism
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
Disputes about the interpretation, application and breach of collective agreements
- Roelofse, Cornelius Johannes
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
Domestication of the international-law prohibition of child soldiering
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
Essential services in light of the 2014 Labour Law amendments
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
Evaluating the exclusion of certain categories of workers from the coverage of the unemployment insurance act 63 of 2001 and the consequences thereof
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
Labour dispute resolution in Uganda
- Chabo, Godsent, Ndimurwimo, Leah A
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
Noise pollution at sea
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
Non-standard employment in terms of the labour relations act
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020