Constitutional and human-rights aspects of marine spatial planning
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
Discrimination and dismissal based on age
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
Employee pension and provident fund rights
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
Labour dispute resolution in South Africa and Malawi: a comparative study
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
Labour rights of fishers in Namibia
- Hamukuaya, Nghililewanga Hashali
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
Mechanisms for implementing affirmative action
- Authors: Nongogo, Nqabisa Thandazile
- Date: 2018
- Subjects: Affirmative action programs -- South Africa , Minorities -- Employment -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33475 , vital:32878
- Description: The aim of this study was to analyse the effective implementation of affirmative action. In South Africa. Affirmative action is seen as a means of correcting historical injustices and levelling the playing fields to enable all South Africans to gain equal access to opportunities from which they were previously restricted. This study observed that even though South Africa is now governed by a new democratic order historical workplace inequalities exists which still need to be addressed. Further it was noted that not only compelled to redress inequalities by the Constitution, the South African government was motivated by the ILO to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Therefore, in an effort to narrow the gap between previously advantaged and disadvantaged individuals, the government passed a series of employment laws mandating, amongst other things, affirmative action. By doing so the South African government sought to ensure that all employers are compelled to take positive steps to redress disadvantage and inequality. Be that as it may, the study revealed that affirmative action is theoretically justifiable and has an important role in the achievement of equal opportunities and equality of outcome but in practice, various problems exist. Generally, the study reveals that notwithstanding the legislative framework of affirmative action in South Africa, inequalities continues to exist in employment, a clear signal of inadequate implementation of affirmative action. The study reveals that black people, women and unable persons are identified as primary victims of workplace inequalities. Continuity of work inequalities are statistically portrayed graphically in this year’s (2017) Quarterly Labour Force Survey (QLFS) conducted and published by Statistics South Africa on the Economically Active Population (EAP) still indicates no confidence to implementation of affirmative action measures nationwide. Reviews of implementation of affirmative action, recruitment strategies, retrenchment plans are strongly proposed to combat controversies and challenges surrounding the implementation of affirmative action. A sunset clause is highly recommended to projectize affirmative action. Similarly, with determined advocacy for affirmative action, the study anticipates progressive equality and sustainable justice in South African employment in the immediate future. Chapter five of this study recommends remedial measures to address the challenges and impediments for effective implementation of affirmative action.
- Full Text:
- Date Issued: 2018
- Authors: Nongogo, Nqabisa Thandazile
- Date: 2018
- Subjects: Affirmative action programs -- South Africa , Minorities -- Employment -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33475 , vital:32878
- Description: The aim of this study was to analyse the effective implementation of affirmative action. In South Africa. Affirmative action is seen as a means of correcting historical injustices and levelling the playing fields to enable all South Africans to gain equal access to opportunities from which they were previously restricted. This study observed that even though South Africa is now governed by a new democratic order historical workplace inequalities exists which still need to be addressed. Further it was noted that not only compelled to redress inequalities by the Constitution, the South African government was motivated by the ILO to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Therefore, in an effort to narrow the gap between previously advantaged and disadvantaged individuals, the government passed a series of employment laws mandating, amongst other things, affirmative action. By doing so the South African government sought to ensure that all employers are compelled to take positive steps to redress disadvantage and inequality. Be that as it may, the study revealed that affirmative action is theoretically justifiable and has an important role in the achievement of equal opportunities and equality of outcome but in practice, various problems exist. Generally, the study reveals that notwithstanding the legislative framework of affirmative action in South Africa, inequalities continues to exist in employment, a clear signal of inadequate implementation of affirmative action. The study reveals that black people, women and unable persons are identified as primary victims of workplace inequalities. Continuity of work inequalities are statistically portrayed graphically in this year’s (2017) Quarterly Labour Force Survey (QLFS) conducted and published by Statistics South Africa on the Economically Active Population (EAP) still indicates no confidence to implementation of affirmative action measures nationwide. Reviews of implementation of affirmative action, recruitment strategies, retrenchment plans are strongly proposed to combat controversies and challenges surrounding the implementation of affirmative action. A sunset clause is highly recommended to projectize affirmative action. Similarly, with determined advocacy for affirmative action, the study anticipates progressive equality and sustainable justice in South African employment in the immediate future. Chapter five of this study recommends remedial measures to address the challenges and impediments for effective implementation of affirmative action.
- Full Text:
- Date Issued: 2018
Public sector employees and their right to just administrative action
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
Ratifying the ILO convention no. 102 (social security minimum standards convention, 1952) by South Africa
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
Regulating essential services, maintenance services and minimum services agreements
- Authors: Zama, Ntokozo Patrick
- Date: 2018
- Subjects: Collective labor agreements
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21582 , vital:29637
- Description: South Africa has in the recent past seen employees embarking in strike action, even in sectors designated as essential services. The impact adversely affected inter alia economic growth, investor confidence, international credit ratings and the high rate of unemployment. The Labour Relations Act 66 of 1995 from its inception on 11 November 1996, and as amended, in 2002 and in 2015, has brought about some minor changes to the model aimed at regulating essential services, maintenance services and minimum services agreements. This research is aimed at investigating; whether essential services, maintenance services and minimum services agreements are designed to unjustifiably limit the right to strike or not. The Constitution1 and the Labour Relations Act, 19952 encourages parties in employment relationship to engage in collective bargaining. Mechanisms such as a no duty to bargain envisaged within the current LRA regulatory framework, appears to be undermining the significance of ensuring that parties engaged within services designated as essential and maintenance services exercise their fundamental right to strike and to bargain collectively. The Essential Services Committee when dispensing with its statutory functions may be unjustifiably limiting the right to strike for employees engaged in essential and maintenance services. Some employers may be to some degree reluctant to trigger maintenance services provisions as the LRA appears to be adopting a voluntarism principle when regulating collective bargaining, as the Act is encouraging employers to deal with the provision of maintenance services within collective agreements. An introduction of a judiciable enforceable duty to bargain collectively in services designated as essential and maintenance services may compel employers to conclude minimum services agreements. The extremely low number of services designated as maintenance services is a worrying reality and the solution is urgently required.
- Full Text:
- Date Issued: 2018
- Authors: Zama, Ntokozo Patrick
- Date: 2018
- Subjects: Collective labor agreements
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21582 , vital:29637
- Description: South Africa has in the recent past seen employees embarking in strike action, even in sectors designated as essential services. The impact adversely affected inter alia economic growth, investor confidence, international credit ratings and the high rate of unemployment. The Labour Relations Act 66 of 1995 from its inception on 11 November 1996, and as amended, in 2002 and in 2015, has brought about some minor changes to the model aimed at regulating essential services, maintenance services and minimum services agreements. This research is aimed at investigating; whether essential services, maintenance services and minimum services agreements are designed to unjustifiably limit the right to strike or not. The Constitution1 and the Labour Relations Act, 19952 encourages parties in employment relationship to engage in collective bargaining. Mechanisms such as a no duty to bargain envisaged within the current LRA regulatory framework, appears to be undermining the significance of ensuring that parties engaged within services designated as essential and maintenance services exercise their fundamental right to strike and to bargain collectively. The Essential Services Committee when dispensing with its statutory functions may be unjustifiably limiting the right to strike for employees engaged in essential and maintenance services. Some employers may be to some degree reluctant to trigger maintenance services provisions as the LRA appears to be adopting a voluntarism principle when regulating collective bargaining, as the Act is encouraging employers to deal with the provision of maintenance services within collective agreements. An introduction of a judiciable enforceable duty to bargain collectively in services designated as essential and maintenance services may compel employers to conclude minimum services agreements. The extremely low number of services designated as maintenance services is a worrying reality and the solution is urgently required.
- Full Text:
- Date Issued: 2018
Substantive fairness in dismissals based on operational requirements
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
Substantive fairness in the context of dismissal for team misconduct
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
The concept of equal pay for equal work
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
The criminalization of consensual sexual acts between children
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
The criminalization of HIV and the significance of knowledge: a comparative study
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
The effect of the amendments to the labour relations act on collective labour law and proliferation of the unions
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
The effective use of legal protection to combat stigma and discrimination related to HIV and AIDS in a workplace: a case study in kwa Zulu Natal
- Authors: Ndobeni, Zoliswa Nomawesile
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation , Medical policy -- legislation & jurisprudence Public health -- legislation & jurisprudence HIV-positive persons -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32804 , vital:32365
- Description: Stigma and discrimination continue to be the leading cause of everyday cases of new HIV/AIDS infections in spite of the current legal and medical interventions available. The purpose of the study is to explore the effective use of legal protection in combating stigma and discrimination related to HIV/AIDS in the workplace. When it comes to fighting discrimination and stigma against people living with HIV/AIDS, it is still a challenge as these aspects prevent people from coming forward for testing and for prevention as well as treatment service. The rationale for conducting the study is to examine the relationship of the human rights as per the Constitution of South Africa and the spread and impact of HIV/AIDS on individuals in the workplace. The study is of significance to conduct as the research will further provide knowledge and awareness to both the employer and employee regarding the legal framework pertaining to HIV/AIDS and perhaps unintentional consequences of the legal framework to both the employer and employee concerning productivity and growth. Various legal frameworks were determined to address HIV pandemic in South Africa which constitutes one of the utmost challenges facing the nation as well as benchmarking international law. The structure and functioning of the workplace is a key possibility to address developmental inequities in South Africa. This includes the development of healthcare centres in the workplace. HIV testing involves a great deal of risks and consequences that may not be apparent to the patient. Hence, informed consent is required. Policies and guidelines have been put in place to protect employees. HIV clinicians now argue that HIV testing should be presented as a routine procedure, to remove social barriers and stigma. The present study recommends various programmes that may assist in minimizing stigma and discrimination of people living with HIV. This stigma prevent persons from testing for HIV status. The study also seeks to evaluate and review current policies concerning HIV/AIDS.
- Full Text:
- Date Issued: 2018
- Authors: Ndobeni, Zoliswa Nomawesile
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation , Medical policy -- legislation & jurisprudence Public health -- legislation & jurisprudence HIV-positive persons -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32804 , vital:32365
- Description: Stigma and discrimination continue to be the leading cause of everyday cases of new HIV/AIDS infections in spite of the current legal and medical interventions available. The purpose of the study is to explore the effective use of legal protection in combating stigma and discrimination related to HIV/AIDS in the workplace. When it comes to fighting discrimination and stigma against people living with HIV/AIDS, it is still a challenge as these aspects prevent people from coming forward for testing and for prevention as well as treatment service. The rationale for conducting the study is to examine the relationship of the human rights as per the Constitution of South Africa and the spread and impact of HIV/AIDS on individuals in the workplace. The study is of significance to conduct as the research will further provide knowledge and awareness to both the employer and employee regarding the legal framework pertaining to HIV/AIDS and perhaps unintentional consequences of the legal framework to both the employer and employee concerning productivity and growth. Various legal frameworks were determined to address HIV pandemic in South Africa which constitutes one of the utmost challenges facing the nation as well as benchmarking international law. The structure and functioning of the workplace is a key possibility to address developmental inequities in South Africa. This includes the development of healthcare centres in the workplace. HIV testing involves a great deal of risks and consequences that may not be apparent to the patient. Hence, informed consent is required. Policies and guidelines have been put in place to protect employees. HIV clinicians now argue that HIV testing should be presented as a routine procedure, to remove social barriers and stigma. The present study recommends various programmes that may assist in minimizing stigma and discrimination of people living with HIV. This stigma prevent persons from testing for HIV status. The study also seeks to evaluate and review current policies concerning HIV/AIDS.
- Full Text:
- Date Issued: 2018
The legal remedies to protect minors against cyberbullying in South Africa
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
The non-restoration of land: scope and ambit of section 34 of the restitution of land rights act
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
The praxis of reasonability and onus of proof in tax administration in South Africa
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
- Full Text:
- Date Issued: 2018
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
- Full Text:
- Date Issued: 2018
The protection offered in terms of the 2014 labour law amendments to fixed-term Contract and part-time employees
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018