The enforcement of settlement of agreements and arbitration awards
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
The use of Police force in crowd management
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
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