Critical analysis of the 2007 public service strike and its impact on the evolution of formalised collective bargaining in South Africa
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
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- Date Issued: 2009
Size and other determinants of capital structure in South African manufacturing listed companies
- Authors: Mgudlwa, Nosipho
- Date: 2009
- Subjects: Capital management and capital structure , Capital , Corporations -- South Africa -- Finance , Business enterprises
- Language: English
- Type: Thesis , Masters , MTech
- Identifier: vital:8941 , http://hdl.handle.net/10948/1192 , Capital management and capital structure , Capital , Corporations -- South Africa -- Finance , Business enterprises
- Description: The importance of the capital structure as a measure of company growth and performance has been at the core of vigorous debate for many years. With the threat of the recession and global competitiveness to the survival of organizations, what constitutes an optimal capital structure had to be interrogated. The focus of the study is to investigate the factors (with more emphasis on size) that influence the capital structure of manufacturing firms in general and South African manufacturing firms in particular. The aim is to advance recommendations on policy formulation so as to improve the financial performance of the manufacturing sector in South Africa, a developing economy. The study is explained within the theoretical framework which relates elements purported to have an influence on the capital structure to the use of leverage/debt by organizations. Leverage is seen to increase the shareholders‟ interest whilst being exposed to financial risk. The size of the organizations as a comparative element defines the extent of accessing the borrowed funds, hence the distinction between the Small, Medium and Micro Enterprises (SMMEs) and large sized enterprises (LSEs). The research evidence indicates that SMMEs are characterized by lower liquidity, use more short-term debt instead of use of long-term debt, and are generally low in debt and basically capital intensive. On the contrary LSEs are highly leveraged. The selected research design is triangulated, with a combination of a case study which is of a qualitative and interpretive nature, as well as a quantitative type survey by means of a structured questionnaire. Twenty five ratios were computed from information derived from the financial statements of organizations and means and medians were determined for comparative reasons. The questions were directed to chief financial officers or managers responsible for the compilation of the financial statements, mainly to expand on the debt policy of iv their respective organizations. The findings confirmed the correlation between gearing and size, asset structure and growth with the exception of profitability. On the relevance of financial policy regarding debt, two factors were proven to be influential to capital structure decisions: the theory and practice of capital structure and the impact of the debt policy, both of which relate to financial flexibility. The study concluded that as much as there are similarities/consistencies between the two size groups, there are fundamental differences confirming that size significantly impacts on the capital structure choice specifically the use of debt. It is, therefore, recommended that the South African government should review its policies with regards to the financial support towards SMME viability.
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- Date Issued: 2009
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
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- Date Issued: 2008