Substantive equality and the challenge to affimative action as justification for unfair discrimination
- Authors: Delport, Petrus Jacobus
- Date: 2017
- Subjects: Discrimination in employment , Affirmative action programs , Equality
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15467 , vital:28256
- Description: South Africa’s history as a nation is replete with examples of inequality and unfair discrimination. The working arena was no exception to the rule. In fact, it was one of the areas where inequality was most prevalent. Discriminatory legislation was promulgated under the Apartheid regime. These laws enforced differential treatment of employees along racial lines. After 1994, the newly democratic South Africa, through the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter referred to as the “Constitution”), regarded all people as equal before the law and entitled to equal benefit and protection under the law. National legislation was subsequently promulgated to give effect to this constitutional objective. The Employment Equity Act 55 of 1998 (hereinafter referred to as the “EEA”), specifically, gave effect to all employees’ constitutional right to equality in the workplace. Under the EEA, unfair discrimination was forbidden. The EEA also required employers to implement measures to eradicate the injustices of the past. Subsequent to the enactment of the EEA, the Courts reiterated two tests to determine whether unfair discrimination had taken place in the workplace. It also tested whether an affirmative action measure could justify such unfair discrimination. These two tests, referred to in Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12 (11) BCLR 1489 (CC) (Hereinafter referred to as the “Harksen test”) and Minister of Finance v Van Heerden 2004 (11) BCLR 1125 (CC) (Hereinafter referred to as the “Van Heerden test”), were unfortunately applied by the Courts in an inconsistent manner. This created confusion about which test found application in specific circumstances. The Constitutional Court then clarified the confusion through the South African Police Service v Solidarity obo Barnard (2014) ZACC 23 (CC) (Hereinafter referred to as the “Barnard” decision”). It is important to note that this study does not seek to evaluate the correctness of the Barnard decision, nor does it consider the cases prior to the Barnard decision. Rather, this study considers the extent to which the Barnard decision informed later cases dealing with unfair discrimination and affirmative action. In the remaining chapters of this treatise the writer will attempt to answer this question as follows: In chapter two, the legislative framework applicable to issues of unfair discrimination and the application of affirmative action is discussed. Chapter three comprises of a detailed analysis of the Barnard decision. In chapters four and five the writer investigates how the Barnard decision informed four recent cases concerning affirmative action and unfair discrimination in the workplace. These discussions enabled the writer to, in the final chapter; conclude that all four cases were indeed informed by the Barnard decision. The Department of Correctional Services case, however, reiterated the Barnard decision to its fullest extent.
- Full Text:
- Date Issued: 2017
- Authors: Delport, Petrus Jacobus
- Date: 2017
- Subjects: Discrimination in employment , Affirmative action programs , Equality
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15467 , vital:28256
- Description: South Africa’s history as a nation is replete with examples of inequality and unfair discrimination. The working arena was no exception to the rule. In fact, it was one of the areas where inequality was most prevalent. Discriminatory legislation was promulgated under the Apartheid regime. These laws enforced differential treatment of employees along racial lines. After 1994, the newly democratic South Africa, through the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter referred to as the “Constitution”), regarded all people as equal before the law and entitled to equal benefit and protection under the law. National legislation was subsequently promulgated to give effect to this constitutional objective. The Employment Equity Act 55 of 1998 (hereinafter referred to as the “EEA”), specifically, gave effect to all employees’ constitutional right to equality in the workplace. Under the EEA, unfair discrimination was forbidden. The EEA also required employers to implement measures to eradicate the injustices of the past. Subsequent to the enactment of the EEA, the Courts reiterated two tests to determine whether unfair discrimination had taken place in the workplace. It also tested whether an affirmative action measure could justify such unfair discrimination. These two tests, referred to in Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12 (11) BCLR 1489 (CC) (Hereinafter referred to as the “Harksen test”) and Minister of Finance v Van Heerden 2004 (11) BCLR 1125 (CC) (Hereinafter referred to as the “Van Heerden test”), were unfortunately applied by the Courts in an inconsistent manner. This created confusion about which test found application in specific circumstances. The Constitutional Court then clarified the confusion through the South African Police Service v Solidarity obo Barnard (2014) ZACC 23 (CC) (Hereinafter referred to as the “Barnard” decision”). It is important to note that this study does not seek to evaluate the correctness of the Barnard decision, nor does it consider the cases prior to the Barnard decision. Rather, this study considers the extent to which the Barnard decision informed later cases dealing with unfair discrimination and affirmative action. In the remaining chapters of this treatise the writer will attempt to answer this question as follows: In chapter two, the legislative framework applicable to issues of unfair discrimination and the application of affirmative action is discussed. Chapter three comprises of a detailed analysis of the Barnard decision. In chapters four and five the writer investigates how the Barnard decision informed four recent cases concerning affirmative action and unfair discrimination in the workplace. These discussions enabled the writer to, in the final chapter; conclude that all four cases were indeed informed by the Barnard decision. The Department of Correctional Services case, however, reiterated the Barnard decision to its fullest extent.
- Full Text:
- Date Issued: 2017
The application of BEE legislation on employment
- Authors: Loock, Madelaine
- Date: 2017
- Subjects: Business enterprises -- Law and legislation -- South Africa , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17990 , vital:28551
- Description: BBBEE is currently on everyone’s minds and the uncertainty surrounding the changes to the Codes of Good Practice as well as the Sector Codes leaves business owner’s with a feeling of uncomfortable anticipation. The changes to the Codes of Good Practice has set the tone and most of the Sector Codes are being modelled around the Codes. Business owners will have to adapt to the changes and plan in advance in order to avoid being without a compliant BEE certificate. This will entail a strategic analysis of the company’s financial position as well as a strategic BEE plan for the 12 months they will be rated on.
- Full Text:
- Date Issued: 2017
- Authors: Loock, Madelaine
- Date: 2017
- Subjects: Business enterprises -- Law and legislation -- South Africa , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17990 , vital:28551
- Description: BBBEE is currently on everyone’s minds and the uncertainty surrounding the changes to the Codes of Good Practice as well as the Sector Codes leaves business owner’s with a feeling of uncomfortable anticipation. The changes to the Codes of Good Practice has set the tone and most of the Sector Codes are being modelled around the Codes. Business owners will have to adapt to the changes and plan in advance in order to avoid being without a compliant BEE certificate. This will entail a strategic analysis of the company’s financial position as well as a strategic BEE plan for the 12 months they will be rated on.
- Full Text:
- Date Issued: 2017
The broadcasting of criminal trials : upholding the freedom of expression or undermining the right to fair trial?
- Authors: Nunu, Sukoluhle Belinda
- Date: 2017
- Subjects: Free press and fair trial -- South Africa Freedom of expression -- South Africa Freedom of the press -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2832 , vital:28102
- Description: This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.
- Full Text:
- Date Issued: 2017
- Authors: Nunu, Sukoluhle Belinda
- Date: 2017
- Subjects: Free press and fair trial -- South Africa Freedom of expression -- South Africa Freedom of the press -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2832 , vital:28102
- Description: This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.
- Full Text:
- Date Issued: 2017
The combined exclusive maritime zone of Africa
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
The constitutionality of Section 14 of the Employment of Educators Act
- Authors: Delport, Gerhardus Jordaan
- Date: 2017
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15479 , vital:28257
- Description: The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.
- Full Text:
- Date Issued: 2017
- Authors: Delport, Gerhardus Jordaan
- Date: 2017
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15479 , vital:28257
- Description: The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.
- Full Text:
- Date Issued: 2017
The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017
The defence of battered woman syndrome
- Matyobeni, Phathiswa Vanesharee
- Authors: Matyobeni, Phathiswa Vanesharee
- Date: 2017
- Subjects: Abused women -- South Africa , Battered woman syndrome -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45432 , vital:38616
- Description: Women in South Africa are a vulnerable group, who face threats of violence and abuse daily. The worst aspect of this being domestic abuse or intimate partner violence. Domestic abuse between partners is a common occurrence that results not only from a power imbalance in the relationship but from expectations of society regarding the role of the woman and accepted behaviours, regarding the disciplining of the wife, that is held by communities. Despite attempts by law enforcement and the State to minimise and control domestic abuse; domestic abuse remains on the rise. These women find themselves unprotected and facing possible death at the hands of a loved one. In fear for their lives, these women resolve to kill their partners before their husbands kill them. This changes their status from victim to perpetrator. Consequently, they face prosecution.This dilemma is not unique to South Africa, and as a result, author Lenore Walker created Battered Woman Syndrome. This syndrome was created to explain the experience of these women and answer the questions as to why these women remain in these relationships. Also explained is why they feel trapped. This is a psychological theory that has been used by courts in Australia and the United States to assist the battered woman in justifying her actions when claiming self-defence. South Africa, however, has not made use of Battered Woman Syndrome when defending the battered woman in South African courts.
- Full Text:
- Date Issued: 2017
- Authors: Matyobeni, Phathiswa Vanesharee
- Date: 2017
- Subjects: Abused women -- South Africa , Battered woman syndrome -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45432 , vital:38616
- Description: Women in South Africa are a vulnerable group, who face threats of violence and abuse daily. The worst aspect of this being domestic abuse or intimate partner violence. Domestic abuse between partners is a common occurrence that results not only from a power imbalance in the relationship but from expectations of society regarding the role of the woman and accepted behaviours, regarding the disciplining of the wife, that is held by communities. Despite attempts by law enforcement and the State to minimise and control domestic abuse; domestic abuse remains on the rise. These women find themselves unprotected and facing possible death at the hands of a loved one. In fear for their lives, these women resolve to kill their partners before their husbands kill them. This changes their status from victim to perpetrator. Consequently, they face prosecution.This dilemma is not unique to South Africa, and as a result, author Lenore Walker created Battered Woman Syndrome. This syndrome was created to explain the experience of these women and answer the questions as to why these women remain in these relationships. Also explained is why they feel trapped. This is a psychological theory that has been used by courts in Australia and the United States to assist the battered woman in justifying her actions when claiming self-defence. South Africa, however, has not made use of Battered Woman Syndrome when defending the battered woman in South African courts.
- Full Text:
- Date Issued: 2017
The effect of recent amendments to the LRA within the context of collective bargaining
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017
The effect of the Marikana events on the collective bargaining process in South Africa
- Authors: Butjie, Boitumelo Cordelia
- Date: 2017
- Subjects: Collective bargaining -- Mining industry , Strikes and lockouts -- Miners -- South Africa -- Marikana
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/9239 , vital:26482
- Description: The basic structures of collective bargaining in South Africa have evolved since industrialisation, through the Wiehahn-Commission era until the Farlam one and beyond, resulting in a number of legislative changes from 1924 to 2014. While dealing with collective bargaining, it is not possible to divorce the powerful history of mining from the South African story, from the diamond fields in Kimberley to the discovery of gold on the Witwatersrand in 1886, where the mine employees’ focused on cheap, unskilled labour and migrant system in the 1900s to the tragic events at Marikana in 2012. In the advent of the industry revolution, employment relationships changed as competitive demands placed a great need for advancing economic developments which are often expressed through collective-bargaining. The objective of collective bargaining is to arrive at an agreement between the employer and employees to determine mutually beneficial terms and conditions of employment such agreement may prohibit unions to embark on an industrial action for as long as it is in place. Strikes became important during the Industrial Revolution, when many worked in factories and mines. Often when employees’ demands are not met, they resort to strike action. Strike action is when a number of employees stop rendering their service in protest to express their grievances. These strikes are usually led by labour unions to get better pay, working hours or working conditions during collective bargaining as a last resort. While trade union leadership fails to advance employees’ cause, employees resort to informal alternative structures to negotiate on their behalf. South Africans have a tradition of taking to the streets in protest when unhappy about issues and this tradition did not spring up during the apartheid era but has been around from as early as 1922 to date. Protests in South Africa today draw from past repertoires and at the same time push for new political practices and directions. Strikes are often used to: Pressure governments to change its policies like in the Rand Revolt; Strikes can destabilise the rule of a particular political party like a series of strikes by blacks in the 1970s and 1980s including the 1973 Durban dockworkers and the 1987 miners’ strikes; Strikes are often part of a broader social movement taking the form of a campaign of civil resistance like Treatment Action Campaign and community struggles such Abahlali Base Mjondolo. On the strike issues in South Africa, the researcher draws from the terrible incident that transpired in August 2012 at Lonmin Mine-Marikana and how it has affected the collective bargaining landscape in South Africa. The first real and significant labour unrest, the Witwatersrand miner strike rocked South Africa to the core in 1922 and in 2012, ninety years later the violent strike by the Rock Operational Drillers at Lonmin following the Marikana massacre and as such did not enjoy statutory protection under the LRA because was classified as wildcat strike. Normally, a wildcat strike constitutes a violation of a collective bargaining agreement in place and as such is not protected unless a union joins it and ratifies the protest. The union may, however, discipline its members for participating in a wildcat strike and impose fines. Among other things miners mainly demanded a wage increment of R12500 per month. The fight between AMCU and NUM for organisational rights also found its way into the equation. A strike wave, not only linked to the mining sector, made 2012 the most protest filled year since the end of apartheid, rolled out across South Africa, closing some industrial operations and crippling others. Commentators argue that the strike wave emerged from a landscape of extreme inequality and poverty, made intolerable by the additional financial burdens arising from the migrant labour system. These factors influenced the industrial action and institutions of collective bargaining comprising of both company and union structures and processes, were found wanting in their ability to address the root causes of the crisis. The post-Marikana strike wave made a mark in the workers struggle movement as it drew in thousands of workers to join AMCU and at the same time weakening NUM, the then majority union. The strike led to the rise and growth of AMCU which was seen by miners as the driver for change. The 2012 strike wave and the Marikana massacre not only changed the balance of forces on the ground against the NUM, but also generated divisions within COSATU. The divisions were between those who decided to remain deaf to the workers’ call for transformation and those who had already realised that a decisive turn in economic policy was needed to avoid a social, economic and political crisis. In the aftermath of the strike, a number community struggles increased as 2012 began and on the other side, a number of splinter groups from COSATU mushroomed which was hobbled by in fights. NUM’s collapse is indeed part of a series of recent failures for COSATU.
- Full Text:
- Date Issued: 2017
- Authors: Butjie, Boitumelo Cordelia
- Date: 2017
- Subjects: Collective bargaining -- Mining industry , Strikes and lockouts -- Miners -- South Africa -- Marikana
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/9239 , vital:26482
- Description: The basic structures of collective bargaining in South Africa have evolved since industrialisation, through the Wiehahn-Commission era until the Farlam one and beyond, resulting in a number of legislative changes from 1924 to 2014. While dealing with collective bargaining, it is not possible to divorce the powerful history of mining from the South African story, from the diamond fields in Kimberley to the discovery of gold on the Witwatersrand in 1886, where the mine employees’ focused on cheap, unskilled labour and migrant system in the 1900s to the tragic events at Marikana in 2012. In the advent of the industry revolution, employment relationships changed as competitive demands placed a great need for advancing economic developments which are often expressed through collective-bargaining. The objective of collective bargaining is to arrive at an agreement between the employer and employees to determine mutually beneficial terms and conditions of employment such agreement may prohibit unions to embark on an industrial action for as long as it is in place. Strikes became important during the Industrial Revolution, when many worked in factories and mines. Often when employees’ demands are not met, they resort to strike action. Strike action is when a number of employees stop rendering their service in protest to express their grievances. These strikes are usually led by labour unions to get better pay, working hours or working conditions during collective bargaining as a last resort. While trade union leadership fails to advance employees’ cause, employees resort to informal alternative structures to negotiate on their behalf. South Africans have a tradition of taking to the streets in protest when unhappy about issues and this tradition did not spring up during the apartheid era but has been around from as early as 1922 to date. Protests in South Africa today draw from past repertoires and at the same time push for new political practices and directions. Strikes are often used to: Pressure governments to change its policies like in the Rand Revolt; Strikes can destabilise the rule of a particular political party like a series of strikes by blacks in the 1970s and 1980s including the 1973 Durban dockworkers and the 1987 miners’ strikes; Strikes are often part of a broader social movement taking the form of a campaign of civil resistance like Treatment Action Campaign and community struggles such Abahlali Base Mjondolo. On the strike issues in South Africa, the researcher draws from the terrible incident that transpired in August 2012 at Lonmin Mine-Marikana and how it has affected the collective bargaining landscape in South Africa. The first real and significant labour unrest, the Witwatersrand miner strike rocked South Africa to the core in 1922 and in 2012, ninety years later the violent strike by the Rock Operational Drillers at Lonmin following the Marikana massacre and as such did not enjoy statutory protection under the LRA because was classified as wildcat strike. Normally, a wildcat strike constitutes a violation of a collective bargaining agreement in place and as such is not protected unless a union joins it and ratifies the protest. The union may, however, discipline its members for participating in a wildcat strike and impose fines. Among other things miners mainly demanded a wage increment of R12500 per month. The fight between AMCU and NUM for organisational rights also found its way into the equation. A strike wave, not only linked to the mining sector, made 2012 the most protest filled year since the end of apartheid, rolled out across South Africa, closing some industrial operations and crippling others. Commentators argue that the strike wave emerged from a landscape of extreme inequality and poverty, made intolerable by the additional financial burdens arising from the migrant labour system. These factors influenced the industrial action and institutions of collective bargaining comprising of both company and union structures and processes, were found wanting in their ability to address the root causes of the crisis. The post-Marikana strike wave made a mark in the workers struggle movement as it drew in thousands of workers to join AMCU and at the same time weakening NUM, the then majority union. The strike led to the rise and growth of AMCU which was seen by miners as the driver for change. The 2012 strike wave and the Marikana massacre not only changed the balance of forces on the ground against the NUM, but also generated divisions within COSATU. The divisions were between those who decided to remain deaf to the workers’ call for transformation and those who had already realised that a decisive turn in economic policy was needed to avoid a social, economic and political crisis. In the aftermath of the strike, a number community struggles increased as 2012 began and on the other side, a number of splinter groups from COSATU mushroomed which was hobbled by in fights. NUM’s collapse is indeed part of a series of recent failures for COSATU.
- Full Text:
- Date Issued: 2017
The fairness of sanctions for misconduct dismissals
- Matoti, Kenneth Augustus Linda
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
The impact of violence during strike action on protected strikes
- Authors: Mbeleni, Xolani McGlory
- Date: 2017
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa Industrial relations -- South Africa , Violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45410 , vital:38614
- Description: This research has five important objectives. First, to outline the legal frame work regulating the right to strike. Outlining this legal framework is important in that it will provide an understanding of both the right to strike and the concept of a protected strike. it is crucial to understand what a protected strike is because the concept underlies the entire research. Without understanding it, it will be impossible to answer the main research question. Second, to investigate the causes of violence during protected strikes. An examination of the causes of violence enables the study to suggest possible solutions to end violent strike action in future. After all the LRA envisages in section 1, labour peace and an effective resolution of disputes. Third, to examine how the LRA regulates the use of violence during protected strikes. An understanding of how the LRA regulates violent strike action is important since the LRA is an important piece of legislation which governs South African labour relations. It is important to obtain guidance on how the law regulates such conduct. Fourth, to ascertain the courts’ approach towards violence during strikes The courts’ approach helps us understand how the courts will deal with strike violence during 5 protected strikes. It is also noteworthy that case precedents in this regard will be of importance when faced with similar acts of violence during strike action. Fifth, to examine the legal implications of violence during protected strikes. This objective directly answers the main research question and this will enable the study to offer possible recommendations in the final chapter of this study.
- Full Text:
- Date Issued: 2017
- Authors: Mbeleni, Xolani McGlory
- Date: 2017
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa Industrial relations -- South Africa , Violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45410 , vital:38614
- Description: This research has five important objectives. First, to outline the legal frame work regulating the right to strike. Outlining this legal framework is important in that it will provide an understanding of both the right to strike and the concept of a protected strike. it is crucial to understand what a protected strike is because the concept underlies the entire research. Without understanding it, it will be impossible to answer the main research question. Second, to investigate the causes of violence during protected strikes. An examination of the causes of violence enables the study to suggest possible solutions to end violent strike action in future. After all the LRA envisages in section 1, labour peace and an effective resolution of disputes. Third, to examine how the LRA regulates the use of violence during protected strikes. An understanding of how the LRA regulates violent strike action is important since the LRA is an important piece of legislation which governs South African labour relations. It is important to obtain guidance on how the law regulates such conduct. Fourth, to ascertain the courts’ approach towards violence during strikes The courts’ approach helps us understand how the courts will deal with strike violence during 5 protected strikes. It is also noteworthy that case precedents in this regard will be of importance when faced with similar acts of violence during strike action. Fifth, to examine the legal implications of violence during protected strikes. This objective directly answers the main research question and this will enable the study to offer possible recommendations in the final chapter of this study.
- Full Text:
- Date Issued: 2017
The obligation on employers to effect affirmative action measures
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
The principle of distinction and modern armed conflicts: a critical analysis of the protection regime based on the distinction between civilians and combatants under international humanitarian law
- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
- Full Text:
- Date Issued: 2017
- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
- Full Text:
- Date Issued: 2017
The procedural fairness requirement in suspensions
- Authors: Japtha, Louisa Dihelena
- Date: 2017
- Subjects: Labor discipline -- Law and legislation -- South Africa Employees -- Complaints against -- South Africa , Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17603 , vital:28400
- Description: The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.
- Full Text:
- Date Issued: 2017
- Authors: Japtha, Louisa Dihelena
- Date: 2017
- Subjects: Labor discipline -- Law and legislation -- South Africa Employees -- Complaints against -- South Africa , Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17603 , vital:28400
- Description: The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.
- Full Text:
- Date Issued: 2017
The regulation of sick and incapacity leave in the public sector
- Authors: Gunguta, Thembeka Maureen
- Date: 2017
- Subjects: Sick leave -- Law and legislation -- South Africa Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16087 , vital:28319
- Description: The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.
- Full Text:
- Date Issued: 2017
- Authors: Gunguta, Thembeka Maureen
- Date: 2017
- Subjects: Sick leave -- Law and legislation -- South Africa Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16087 , vital:28319
- Description: The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.
- Full Text:
- Date Issued: 2017
The right to engage in collective bargaining
- Authors: Oliphant, Lukhanyo Shane
- Date: 2017
- Subjects: Collective bargaining -- South Africa -- Eastern Cape Labor laws and legislation -- South Africa , Industrial relations -- South Africa Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19463 , vital:28881
- Description: The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.
- Full Text:
- Date Issued: 2017
- Authors: Oliphant, Lukhanyo Shane
- Date: 2017
- Subjects: Collective bargaining -- South Africa -- Eastern Cape Labor laws and legislation -- South Africa , Industrial relations -- South Africa Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19463 , vital:28881
- Description: The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.
- Full Text:
- Date Issued: 2017
The role of the CCMA to mitigate job losses in the context of operational requirements dismissal
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
The social security law position of employees involved in motor vehicle accidents
- Authors: Njamela, Marrof Zalisile
- Date: 2017
- Subjects: Social security -- Law and legislation Traffic accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20121 , vital:29126
- Description: The primary purpose of the study is to highlight the social security law position of employees involved in MVAs. The study concludes and notes that: The current social security system provides an inadequate prevention strategy for employees involved in MVAs. A blanket program of fitness for work as an occupational accident prevention tool should be legislated and be part of the OHSA general duties of employers to their employees. A social security system that attempts to address loss of ability to earn as a result of occupational injury must incorporate an integrated approach towards prevention of risks, compensation and rehabilitation. Social security legal instruments currently providing compensation for employees involved in MVAs (RAF and COIDA) are promulgated for more benefits. A RTW plan, Vocational assessment and rehabilitation of injured employees, all processes that will aid continued employment for injured employees, will be included. This will ensure that employees continue to earn income which forms the basis of social security.
- Full Text:
- Date Issued: 2017
- Authors: Njamela, Marrof Zalisile
- Date: 2017
- Subjects: Social security -- Law and legislation Traffic accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20121 , vital:29126
- Description: The primary purpose of the study is to highlight the social security law position of employees involved in MVAs. The study concludes and notes that: The current social security system provides an inadequate prevention strategy for employees involved in MVAs. A blanket program of fitness for work as an occupational accident prevention tool should be legislated and be part of the OHSA general duties of employers to their employees. A social security system that attempts to address loss of ability to earn as a result of occupational injury must incorporate an integrated approach towards prevention of risks, compensation and rehabilitation. Social security legal instruments currently providing compensation for employees involved in MVAs (RAF and COIDA) are promulgated for more benefits. A RTW plan, Vocational assessment and rehabilitation of injured employees, all processes that will aid continued employment for injured employees, will be included. This will ensure that employees continue to earn income which forms the basis of social security.
- Full Text:
- Date Issued: 2017
The status of employees employed by temporary employment services
- Authors: Strydom, Masunet
- Date: 2017
- Subjects: Employment agencies -- South Africa , Labor laws and legislation -- South Africa Employees -- South Africa Personnel management -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13680 , vital:27295
- Description: The traditional employer-employee relationship came under an increased threat the past two decades with employers finding the option of utilising the services of Labour Brokers more attractive. Various reasons existed for this tendency amongst employers to opt for the use of Labour Brokers, some of these reasons being valid but mostly some reasons being born out of fear for the unknown labour law duties and obligations that were proposed to be placed on employers post 1994. In the absence of an action plan between the role players in the labour fraternity pathing the way traditional employer-employee relationships could be salvage, employers resorted to the appointment of Labour Brokers and Government on their part retaliated by considering either the total ban of Labour Brokers or the regulation of the profession to such an extent that same became largely unattractive and problematic. The non-addressing of problems and fears faced with by employers post 1994 resulted in an opportunity waisted to narrow the gap between employers and employees with the fight over work force power being the more important factor taken into consideration. This treatise will explore the options that faced the roll players post 1994 in the labour market, the reason for choices made and the effect same has had since on the labour market. The problematic amendments made to Section 198 of the Labour Relations Act in an attempt to iron out the wrinkles poor choices made by the stake holders over the regulations of Labour Brokers, will be discussed. The ripple effect the amendments to Section 198 of the Labour Relations Act had on other pieces of South African legislation will be considered and the uncertainty and confusion it has created discussed. Specific attention needs to be drawn to the intention of the legislature as to which party, the Labour Broker or employer, will be responsible for the ramifications of the wrong doings of an employee. Also, which party will be responsible to the employee to fulfil its labour rights as granted in the Constitution of South Africa. Unleashing reaction to the regulations of Temporary Employment Services does not seem to be a problem, the problem arises where the regulations proposed did not unleashed the desired reaction and roll players finding themselves frustrated and with having no alternative as to turn the Courts to solve the largely self-inflicted conundrum. The courts are left with the task of clarifying the legislature’s true intension in amending section 198 of the Labour Relations Act, which impact the writer with all due respect do not think the legislature even appreciated when the amendments were drafted. Currently, there is dividing views on the future of Labour Brokers per se in South Africa and the interpretation concerning Section 198 of the Labour Relations Act, as amended. The focus of this treatise is to highlight the different interpretations given to these amendments this far and highlight that if it is in fact the wish of stake holders in the Labour fraternity that Labour Brokers should continue to exist, clarification is needed by our Constitution Court on certain vital issues and as discussed in this treatise.
- Full Text:
- Date Issued: 2017
- Authors: Strydom, Masunet
- Date: 2017
- Subjects: Employment agencies -- South Africa , Labor laws and legislation -- South Africa Employees -- South Africa Personnel management -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13680 , vital:27295
- Description: The traditional employer-employee relationship came under an increased threat the past two decades with employers finding the option of utilising the services of Labour Brokers more attractive. Various reasons existed for this tendency amongst employers to opt for the use of Labour Brokers, some of these reasons being valid but mostly some reasons being born out of fear for the unknown labour law duties and obligations that were proposed to be placed on employers post 1994. In the absence of an action plan between the role players in the labour fraternity pathing the way traditional employer-employee relationships could be salvage, employers resorted to the appointment of Labour Brokers and Government on their part retaliated by considering either the total ban of Labour Brokers or the regulation of the profession to such an extent that same became largely unattractive and problematic. The non-addressing of problems and fears faced with by employers post 1994 resulted in an opportunity waisted to narrow the gap between employers and employees with the fight over work force power being the more important factor taken into consideration. This treatise will explore the options that faced the roll players post 1994 in the labour market, the reason for choices made and the effect same has had since on the labour market. The problematic amendments made to Section 198 of the Labour Relations Act in an attempt to iron out the wrinkles poor choices made by the stake holders over the regulations of Labour Brokers, will be discussed. The ripple effect the amendments to Section 198 of the Labour Relations Act had on other pieces of South African legislation will be considered and the uncertainty and confusion it has created discussed. Specific attention needs to be drawn to the intention of the legislature as to which party, the Labour Broker or employer, will be responsible for the ramifications of the wrong doings of an employee. Also, which party will be responsible to the employee to fulfil its labour rights as granted in the Constitution of South Africa. Unleashing reaction to the regulations of Temporary Employment Services does not seem to be a problem, the problem arises where the regulations proposed did not unleashed the desired reaction and roll players finding themselves frustrated and with having no alternative as to turn the Courts to solve the largely self-inflicted conundrum. The courts are left with the task of clarifying the legislature’s true intension in amending section 198 of the Labour Relations Act, which impact the writer with all due respect do not think the legislature even appreciated when the amendments were drafted. Currently, there is dividing views on the future of Labour Brokers per se in South Africa and the interpretation concerning Section 198 of the Labour Relations Act, as amended. The focus of this treatise is to highlight the different interpretations given to these amendments this far and highlight that if it is in fact the wish of stake holders in the Labour fraternity that Labour Brokers should continue to exist, clarification is needed by our Constitution Court on certain vital issues and as discussed in this treatise.
- Full Text:
- Date Issued: 2017
The WTO agreement on technical barriers to trade : a critical appraisal of its implementation within the Southern African Development Community
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017