Customary fishing rights in South African fisheries law
- du Plessis, Anthea Christoffels
- Authors: du Plessis, Anthea Christoffels
- Date: 2025-04
- Subjects: Indigenous people -- Fishing -- Law and legislation , Small-scale fisheries , Customary law -- South Africa
- Language: English
- Type: D theses , text
- Identifier: http://hdl.handle.net/10948/72044 , vital:79180
- Description: Indigenous communities in South Africa have harvested marine resources and relied on the ocean for generations to sustain their traditional livelihoods and culture. In light thereof, it is imperative for the law to specially recognise the rights of indigenous communities. The current legal framework governing fishing rights in South Africa purports to include customary fishing rights as part of small-scale fishing rights. This must be achieved in accordance with the Constitution of the Republic of South Africa, 1996 (Constitution), which confers distinct recognition on customary law, and therefore customary rights of indigenous communities. Access to marine resources under the prevailing legal frameworks has been regulated to ensure commercial exploitation of (and recreational access to) marine living resources. In terms of the previous statutory provisions, the relevant minister was empowered to issue fishing rights by granting quotas. Further provision was made for licensing of fishing vessels such as boats and fish factories. The advancement of conservation imperatives further restricted access to marine resources, ensuring that access to marine resources remained strictly regulated by the State for commercial exploitation. Fishing rights became a business commodity taking precedence over other access rights. To achieve these objectives, the Commissions of Inquiry (Du Plessis, Diemont, Treurnicht) were tasked with proposing sustainable-use strategies for the declining marine resources and to resolve challenges in the commercial fisheries industry. While the governments of years past were busy organising and strategising how best to exploit marine resources and to maximise the industry, the legislation itself did not proscribe or expressly prohibit fishing activities or marine-resource use by indigenous coastal communities. However, the communities’ access to marine and coastal resources was nevertheless restricted owing to the cumulative discriminatory impact of apartheid-order legislation. The fishing industry was no exception to the democratic overhauling of many institutions and industries in South Africa, and was earmarked for transformation. In light of its pre-constitutional isolated and sanctioned status, South Africa was eager to restore its place as a sovereign state and as a member of the international community, by embracing the human-rights-focused norms and standards observed by the international community at large. In 2017, the erstwhile Department of Agriculture, Forestry and Fisheries reported that there were more than 300 fishing communities in South Africa. Although harvesting marine resources remains a longstanding custom and expression of culture, it is trite that indigenous communities along the coast have suffered marginalisation and exclusion from legal recognition of their customary right to access marine resources. Therefore, this thesis first explores the legal obligations to recognise customary fishing rights of indigenous communities in light of international and African regional law. Secondly, it considers the recognition and protection of customary fishing rights in three foreign domestic legal systems from which South Africa can extract valuable insight. The thesis then examines the development of customary law in South Africa generally, as well as the recognition and protection of customary fishing rights under the current legal framework. Finally, the thesis proposes that a definition of customary fishing rights be included in the Marine Living Resources Act 18 of 1998 to properly recognise and protect customary fishing rights as a distinct and sui generis category of fishing rights for customary fishing communities. , Thesis (PhD) -- Faculty of Law, School of Public Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: du Plessis, Anthea Christoffels
- Date: 2025-04
- Subjects: Indigenous people -- Fishing -- Law and legislation , Small-scale fisheries , Customary law -- South Africa
- Language: English
- Type: D theses , text
- Identifier: http://hdl.handle.net/10948/72044 , vital:79180
- Description: Indigenous communities in South Africa have harvested marine resources and relied on the ocean for generations to sustain their traditional livelihoods and culture. In light thereof, it is imperative for the law to specially recognise the rights of indigenous communities. The current legal framework governing fishing rights in South Africa purports to include customary fishing rights as part of small-scale fishing rights. This must be achieved in accordance with the Constitution of the Republic of South Africa, 1996 (Constitution), which confers distinct recognition on customary law, and therefore customary rights of indigenous communities. Access to marine resources under the prevailing legal frameworks has been regulated to ensure commercial exploitation of (and recreational access to) marine living resources. In terms of the previous statutory provisions, the relevant minister was empowered to issue fishing rights by granting quotas. Further provision was made for licensing of fishing vessels such as boats and fish factories. The advancement of conservation imperatives further restricted access to marine resources, ensuring that access to marine resources remained strictly regulated by the State for commercial exploitation. Fishing rights became a business commodity taking precedence over other access rights. To achieve these objectives, the Commissions of Inquiry (Du Plessis, Diemont, Treurnicht) were tasked with proposing sustainable-use strategies for the declining marine resources and to resolve challenges in the commercial fisheries industry. While the governments of years past were busy organising and strategising how best to exploit marine resources and to maximise the industry, the legislation itself did not proscribe or expressly prohibit fishing activities or marine-resource use by indigenous coastal communities. However, the communities’ access to marine and coastal resources was nevertheless restricted owing to the cumulative discriminatory impact of apartheid-order legislation. The fishing industry was no exception to the democratic overhauling of many institutions and industries in South Africa, and was earmarked for transformation. In light of its pre-constitutional isolated and sanctioned status, South Africa was eager to restore its place as a sovereign state and as a member of the international community, by embracing the human-rights-focused norms and standards observed by the international community at large. In 2017, the erstwhile Department of Agriculture, Forestry and Fisheries reported that there were more than 300 fishing communities in South Africa. Although harvesting marine resources remains a longstanding custom and expression of culture, it is trite that indigenous communities along the coast have suffered marginalisation and exclusion from legal recognition of their customary right to access marine resources. Therefore, this thesis first explores the legal obligations to recognise customary fishing rights of indigenous communities in light of international and African regional law. Secondly, it considers the recognition and protection of customary fishing rights in three foreign domestic legal systems from which South Africa can extract valuable insight. The thesis then examines the development of customary law in South Africa generally, as well as the recognition and protection of customary fishing rights under the current legal framework. Finally, the thesis proposes that a definition of customary fishing rights be included in the Marine Living Resources Act 18 of 1998 to properly recognise and protect customary fishing rights as a distinct and sui generis category of fishing rights for customary fishing communities. , Thesis (PhD) -- Faculty of Law, School of Public Law, 2025
- Full Text:
- Date Issued: 2025-04
Disciplinary action of employees for the private consumption of cannabis
- Authors: Lokotsch, Lise-Mari Anne
- Date: 2025-04
- Subjects: Labor discipline , Problem employees , Cannabis -- Physiological effect
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72101 , vital:79188
- Description: This paper examines the workplace implications of the legalisation of private cannabis use in South Africa following the landmark Constitutional Court judgment in Minister of Justice and Constitutional Development v Prince.1 The judgment has necessitated a re-evaluation of workplace policies regarding cannabis consumption, which brings to the fore the tension between workplace safety and individual rights. Through a detailed analysis of relevant case law, this treatise distils emerging principles for disciplinary action and emphasises the necessity for equitable workplace policies that uphold employees’ rights to privacy and dignity. It also addresses the regulatory gaps that persist and proposes a set of best practices in policy development which are aligned with the Occupational Health and Safety Act.2 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Lokotsch, Lise-Mari Anne
- Date: 2025-04
- Subjects: Labor discipline , Problem employees , Cannabis -- Physiological effect
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72101 , vital:79188
- Description: This paper examines the workplace implications of the legalisation of private cannabis use in South Africa following the landmark Constitutional Court judgment in Minister of Justice and Constitutional Development v Prince.1 The judgment has necessitated a re-evaluation of workplace policies regarding cannabis consumption, which brings to the fore the tension between workplace safety and individual rights. Through a detailed analysis of relevant case law, this treatise distils emerging principles for disciplinary action and emphasises the necessity for equitable workplace policies that uphold employees’ rights to privacy and dignity. It also addresses the regulatory gaps that persist and proposes a set of best practices in policy development which are aligned with the Occupational Health and Safety Act.2 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
Legal liability under the occupational health and safety act 85 of 1993
- Authors: de Lange,Charl
- Date: 2025-04
- Subjects: South Africa. -- Occupational Health and Safety Act, 1993 , Industrial hygiene -- Law and legislation -- South Africa , Industrial safety -- Law and legislation -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72082 , vital:79186
- Description: South Africa’s legislation dealing with workplace safety is commonly known as the Occupational Health and Safety Act(OHSA).1 OHSA is a pivotal body of law with the aim of protecting workers by ensuring their health and safety.2 Despite the robust framework it provides, there exists a pressing need for further exploration into its provisions, particularly in complex area regarding criminal liability, vicarious liability, and the standards of care mandated for employers. This study seeks to address these areas, seeking to contribute to a more comprehensive understanding of the legislation and its implications for both employers and employees. The OHSA establishes a legal obligation for employers to ensure a safe working environment, with section 38 of the OHSA specifically detailing the criminal liabilities for actions or omissions that jeopardise workplace safety. Section 37 of the OHSA introduces the concept of vicarious liability, which holds employers accountable for the actions or omissions of their employees or independent contractors. Additionally, the Compensation for Occupational Injuries and Diseases Act (COIDA)3 through section 35 provides a statutory measure for claiming no-fault compensation, thereby limiting an employee’s right to institute a civil claim against an employer. The legal concept of liability within workplace safety encompasses several dimensions, including criminal liability, vicarious liability, and strict liability. Criminal liability under OHSA4 implies direct accountability for safety breaches, while vicarious liability extends responsibility to employers for their employees’ actions. Strict liability, although not explicitly detailed in OHSA,5 implies holding parties accountable regardless of fault, particularly relevant in the context of ensuring safe working conditions. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: de Lange,Charl
- Date: 2025-04
- Subjects: South Africa. -- Occupational Health and Safety Act, 1993 , Industrial hygiene -- Law and legislation -- South Africa , Industrial safety -- Law and legislation -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72082 , vital:79186
- Description: South Africa’s legislation dealing with workplace safety is commonly known as the Occupational Health and Safety Act(OHSA).1 OHSA is a pivotal body of law with the aim of protecting workers by ensuring their health and safety.2 Despite the robust framework it provides, there exists a pressing need for further exploration into its provisions, particularly in complex area regarding criminal liability, vicarious liability, and the standards of care mandated for employers. This study seeks to address these areas, seeking to contribute to a more comprehensive understanding of the legislation and its implications for both employers and employees. The OHSA establishes a legal obligation for employers to ensure a safe working environment, with section 38 of the OHSA specifically detailing the criminal liabilities for actions or omissions that jeopardise workplace safety. Section 37 of the OHSA introduces the concept of vicarious liability, which holds employers accountable for the actions or omissions of their employees or independent contractors. Additionally, the Compensation for Occupational Injuries and Diseases Act (COIDA)3 through section 35 provides a statutory measure for claiming no-fault compensation, thereby limiting an employee’s right to institute a civil claim against an employer. The legal concept of liability within workplace safety encompasses several dimensions, including criminal liability, vicarious liability, and strict liability. Criminal liability under OHSA4 implies direct accountability for safety breaches, while vicarious liability extends responsibility to employers for their employees’ actions. Strict liability, although not explicitly detailed in OHSA,5 implies holding parties accountable regardless of fault, particularly relevant in the context of ensuring safe working conditions. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
Substantive equality and the individual right to affirmative action
- Authors: Bothma, Deon
- Date: 2025-04
- Subjects: Affirmative action programs -- South Africa , Labor laws and legislation -- South Africa , Equality -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72063 , vital:79182
- Description: The value of- and right to equality is important in all democracies. Equality discourse is particularly important in South Africa considering its unequal colonial and apartheid past. For centuries, certain categories of people have been excluded from fully participating in the economy and in social life while others benefitted substantially. The advent of democracy has called for a new constitutional order and the rule of law with a human rights focus underpinned by the values of non-racialism, freedom, and equality. Dismantling the architecture of oppression would not be possible without placing positive duties on the state and private individuals to redistribute economic and other opportunities from which those previously disadvantaged by unfair discrimination had been excluded. The right to equality is a contested concept, and the holistic understanding and application of formal and substantive notions of equality are often misunderstood and misapplied in the courts, business, political debates, and academia. This treatise focuses on the constitutional right to equality, with a specific focus on affirmative action measures and their application in the labour market and employment relations. The conventional notion of equality in the form of formal equality, that is not to be discriminated against, seems to be a stumbling block to the achievement of equality, since it often neglects the duty to provide in the form of substantive equality and positive measures. The Employment Equity Act, which has been enacted to give effect to the constitutional right to equality, distinctly provides provisions regulating the prohibition against unfair discrimination and the promotion of positive measures through affirmative action provisions. Affirmative action provisions in the Employment Equity Act have been a contentious matter among all races, men and women, and people with disabilities who contend for work opportunities in a labour market plagued by high levels of unemployment. Equality jurisprudence has been developing since the advent of democracy under a constitutional order and the subsequent promulgation of the Labour Relations Act and the Employment Equity Act. However, the body of case law has not been consistently developed and has resulted in more divergence in debates around equality provisions in various pieces of legislation. The divergent approaches to equality adjudication have necessitated a critical review of the equality provisions in the Bill of Rights and national employment legislation, and furthermore, an evaluation and critique of the application of relevant legislative provisions. Finally, to contribute to the existing body of literature, recommendations will be advanced for consideration by courts and other bodies empowered to decide disputes involving unfair discrimination and affirmative action. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Bothma, Deon
- Date: 2025-04
- Subjects: Affirmative action programs -- South Africa , Labor laws and legislation -- South Africa , Equality -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72063 , vital:79182
- Description: The value of- and right to equality is important in all democracies. Equality discourse is particularly important in South Africa considering its unequal colonial and apartheid past. For centuries, certain categories of people have been excluded from fully participating in the economy and in social life while others benefitted substantially. The advent of democracy has called for a new constitutional order and the rule of law with a human rights focus underpinned by the values of non-racialism, freedom, and equality. Dismantling the architecture of oppression would not be possible without placing positive duties on the state and private individuals to redistribute economic and other opportunities from which those previously disadvantaged by unfair discrimination had been excluded. The right to equality is a contested concept, and the holistic understanding and application of formal and substantive notions of equality are often misunderstood and misapplied in the courts, business, political debates, and academia. This treatise focuses on the constitutional right to equality, with a specific focus on affirmative action measures and their application in the labour market and employment relations. The conventional notion of equality in the form of formal equality, that is not to be discriminated against, seems to be a stumbling block to the achievement of equality, since it often neglects the duty to provide in the form of substantive equality and positive measures. The Employment Equity Act, which has been enacted to give effect to the constitutional right to equality, distinctly provides provisions regulating the prohibition against unfair discrimination and the promotion of positive measures through affirmative action provisions. Affirmative action provisions in the Employment Equity Act have been a contentious matter among all races, men and women, and people with disabilities who contend for work opportunities in a labour market plagued by high levels of unemployment. Equality jurisprudence has been developing since the advent of democracy under a constitutional order and the subsequent promulgation of the Labour Relations Act and the Employment Equity Act. However, the body of case law has not been consistently developed and has resulted in more divergence in debates around equality provisions in various pieces of legislation. The divergent approaches to equality adjudication have necessitated a critical review of the equality provisions in the Bill of Rights and national employment legislation, and furthermore, an evaluation and critique of the application of relevant legislative provisions. Finally, to contribute to the existing body of literature, recommendations will be advanced for consideration by courts and other bodies empowered to decide disputes involving unfair discrimination and affirmative action. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
The application of section 197 of the labour relations act 66 of 1995 on termination of service-level agreements
- Mthembu-Luthuli, Nomzamo Vuyiswa
- Authors: Mthembu-Luthuli, Nomzamo Vuyiswa
- Date: 2025-04
- Subjects: Employees -- Dismissal of -- South Africa , Labor laws and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72168 , vital:79194
- Description: Striking a balance between the rights of employees to fair labour practices, the primary objective of the Labour Relations Act1 to advance economic development which essentially entails ensuring job security versus employers’ rights to fair labour practices has caused a significant hurdle in the employment and industrial law arena. In an endeavour to bridge this gap, section 197 of the LRA was legislated to ensure the job security of the employees during the transfer of businesses by one employer to another, whilst also ensuring smooth transfer and stability of businesses during such transfers. Section 197 of the LRA suggests that employees are automatically transferred to a new employer in the event of a business being transferred as a going concern in accordance with section 197 of the LRA.2 1 66 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Mthembu-Luthuli, Nomzamo Vuyiswa
- Date: 2025-04
- Subjects: Employees -- Dismissal of -- South Africa , Labor laws and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72168 , vital:79194
- Description: Striking a balance between the rights of employees to fair labour practices, the primary objective of the Labour Relations Act1 to advance economic development which essentially entails ensuring job security versus employers’ rights to fair labour practices has caused a significant hurdle in the employment and industrial law arena. In an endeavour to bridge this gap, section 197 of the LRA was legislated to ensure the job security of the employees during the transfer of businesses by one employer to another, whilst also ensuring smooth transfer and stability of businesses during such transfers. Section 197 of the LRA suggests that employees are automatically transferred to a new employer in the event of a business being transferred as a going concern in accordance with section 197 of the LRA.2 1 66 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
Unfair discrimination based on arbitrary ground
- Authors: Nombila, Elliot Xolani
- Date: 2025-04
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , South Africa. -- Employment Equity Act, 1998
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72553 , vital:79237
- Description: Section 9 establishes the right to equality and prohibits unfair discrimination, while section 23 ensures fair labor practices, protecting individuals in the workplace. Additionally, section 1(a) underscores the foundational values of human dignity, equality, and the advancement of human rights. These provisions collectively aim to create a just and equitable society, reflecting South Africa’s commitment to uphold and protect the rights of all citizens. EEA serves as a crucial framework for promoting equality and preventing discrimination in the workplace in South Africa. By prohibiting both direct and indirect unfair discrimination, the EEA ensures that individuals can seek recourse if they experience discrimination based on listed grounds such as race, gender, disability and, more. The amendment introduced in 2014, specifically through the Employment Equity Amendment Act 47 of 2013, expanded the scope of the EEA by including the phrase “or any other arbitrary ground”. This addition allows individuals to bring claims based on grounds not explicitly mentioned in the Act, as long as these grounds can be considered analogous to those listed. This change enhances the EEA’s flexibility and responsiveness to various forms of discrimination that may arise in the workplace. Overall, the EEA and its amendments reflect South Africa’s commitment to creating an equitable working environment, aligning with constitutional principles of equality and non-discrimination. The Act not only provides legal recourse for affected individuals but also encourages employers to foster inclusive and fair workplaces. This amendment has led to various interpretations since the Explanatory Memorandum to the amendments does not provide much clarity on the purpose of the particular amendment. The first possible interpretation of the amendment is that it creates a third ground of unfair discrimination. Secondly, the amendment may refer to the requirement of rationality. Thirdly, the amendment may be synonymous to “one or more grounds” or “unlisted grounds”. This study analyzes possible interpretation of the recent amendment to the EEA in light of established principles from the Constitutional Court. It argues that the first interpretation, which suggests that unfair discrimination can be identified solely on arbitrary grounds, is inadequate. The study emphasises that any claim of unfair discrimination must demonstrate not only irrationality but also that the arbitrary ground significantly impairs the complainant’s fundamental human dignity. Furthermore, the analysis finds the second interpretation unnecessary since the concept of unfair discrimination inherently includes the rationality requirement. This leads to the conclusion that the amendment essentially serves as a synonym for utilised grounds. The differentiation made in section 11 of the EEA between listed and arbitrary (unlisted) grounds-reinforces this understanding. Ultimately, the study concluded that the amendment to the EEA should be interpreted as referring specifically to unlisted grounds. Therefore, the criteria for establishing unfair discrimination based on arbitrary grounds remain consistent: the complainant must demonstrate both irrationality and a substantial impairment of human dignity. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Nombila, Elliot Xolani
- Date: 2025-04
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , South Africa. -- Employment Equity Act, 1998
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72553 , vital:79237
- Description: Section 9 establishes the right to equality and prohibits unfair discrimination, while section 23 ensures fair labor practices, protecting individuals in the workplace. Additionally, section 1(a) underscores the foundational values of human dignity, equality, and the advancement of human rights. These provisions collectively aim to create a just and equitable society, reflecting South Africa’s commitment to uphold and protect the rights of all citizens. EEA serves as a crucial framework for promoting equality and preventing discrimination in the workplace in South Africa. By prohibiting both direct and indirect unfair discrimination, the EEA ensures that individuals can seek recourse if they experience discrimination based on listed grounds such as race, gender, disability and, more. The amendment introduced in 2014, specifically through the Employment Equity Amendment Act 47 of 2013, expanded the scope of the EEA by including the phrase “or any other arbitrary ground”. This addition allows individuals to bring claims based on grounds not explicitly mentioned in the Act, as long as these grounds can be considered analogous to those listed. This change enhances the EEA’s flexibility and responsiveness to various forms of discrimination that may arise in the workplace. Overall, the EEA and its amendments reflect South Africa’s commitment to creating an equitable working environment, aligning with constitutional principles of equality and non-discrimination. The Act not only provides legal recourse for affected individuals but also encourages employers to foster inclusive and fair workplaces. This amendment has led to various interpretations since the Explanatory Memorandum to the amendments does not provide much clarity on the purpose of the particular amendment. The first possible interpretation of the amendment is that it creates a third ground of unfair discrimination. Secondly, the amendment may refer to the requirement of rationality. Thirdly, the amendment may be synonymous to “one or more grounds” or “unlisted grounds”. This study analyzes possible interpretation of the recent amendment to the EEA in light of established principles from the Constitutional Court. It argues that the first interpretation, which suggests that unfair discrimination can be identified solely on arbitrary grounds, is inadequate. The study emphasises that any claim of unfair discrimination must demonstrate not only irrationality but also that the arbitrary ground significantly impairs the complainant’s fundamental human dignity. Furthermore, the analysis finds the second interpretation unnecessary since the concept of unfair discrimination inherently includes the rationality requirement. This leads to the conclusion that the amendment essentially serves as a synonym for utilised grounds. The differentiation made in section 11 of the EEA between listed and arbitrary (unlisted) grounds-reinforces this understanding. Ultimately, the study concluded that the amendment to the EEA should be interpreted as referring specifically to unlisted grounds. Therefore, the criteria for establishing unfair discrimination based on arbitrary grounds remain consistent: the complainant must demonstrate both irrationality and a substantial impairment of human dignity. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
The legality of euthanasia conducted by medical practitioners
- Authors: Davids, Sesam Isipho
- Date: 2024-12
- Subjects: Euthanasia -- Law and legislation , Assisted suicide -- Law and legislation , Euthanasia -- Moral and ethical aspects
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68681 , vital:77081
- Description: Euthanasia remains a contentious subject of debate in countries around the world and in South Africa. The South African court system has been faced with requests for the decriminalisation of euthanasia. However, it remains illegal to practice euthanasia in South Africa. This is set by common law as there is no legislation formally regulating euthanasia. Euthanasia provides relief from suffering for patients with terminal illnesses that cause severe suffering and a decrease in their quality of life. Individual autonomy is recognised as patients are given the ability to choose how to end their lives once they make the decision to terminate their lives. In this study, an examination on physician-assisted euthanasia and its current legal position in South Africa will be conducted. Key terms are defined, such as euthanasia - distinguishing active and passive euthanasia as well as physician-assisted suicide. South African law permits the withdrawal of life-sustaining treatments which may be viewed as passive euthanasia. This is done with the consent of the patient and the medical practitioners involved are not held criminally liable should the withholding of treatment cause the death of the patient. Relevant constitutional rights will be examined to make a case for the legalisation of physician-assisted euthanasia. These rights include the right to dignity, the right to life, the right to equality, the right to freedom of religion, belief and opinion, and the limitation clause. Common law, case law and statutory law will also be considered. The recommendations of the South African Law Commission in its report (project 86) will be examined as well. An analysis will be conducted on how foreign jurisdictions have accepted physician-assisted euthanasia and implemented legislative measures to safeguard and regulate how medical practitioners practice it. Canada is an example of such a jurisdiction and an analysis has been conducted on how courts in Canada have made a case for the decriminalisation of physician-assisted euthanasia. Canadian courts relied on rights such as the right to life and freedom of opinion. viii When arguing for or against the legalisation of euthanasia, the ethical perspectives of both arguments must be considered. The ‘slippery slope’ will be discussed to demonstrate an ethical argument against euthanasia. The ethical framework of utilitarianism will be discussed as an argument for euthanasia. In line with the title of this research, the physician’s role in the process of euthanasia will also be discussed. After weighing the key arguments, this research concludes that physician-assisted euthanasia ought to be legalised in South Africa. Recommendations are further suggested on how euthanasia ought to be regulated should it be legalised. The recommendations serve as a means of addressing the possibility of abuse and illegal conduct from medical practitioners and the public. Through this study, the aim is to contribute to the debate on physician-assisted euthanasia and to advance the development of a euthanasia-related legislation in South Africa. , Thesis (LLM) -- Faculty of Law, School of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: Davids, Sesam Isipho
- Date: 2024-12
- Subjects: Euthanasia -- Law and legislation , Assisted suicide -- Law and legislation , Euthanasia -- Moral and ethical aspects
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68681 , vital:77081
- Description: Euthanasia remains a contentious subject of debate in countries around the world and in South Africa. The South African court system has been faced with requests for the decriminalisation of euthanasia. However, it remains illegal to practice euthanasia in South Africa. This is set by common law as there is no legislation formally regulating euthanasia. Euthanasia provides relief from suffering for patients with terminal illnesses that cause severe suffering and a decrease in their quality of life. Individual autonomy is recognised as patients are given the ability to choose how to end their lives once they make the decision to terminate their lives. In this study, an examination on physician-assisted euthanasia and its current legal position in South Africa will be conducted. Key terms are defined, such as euthanasia - distinguishing active and passive euthanasia as well as physician-assisted suicide. South African law permits the withdrawal of life-sustaining treatments which may be viewed as passive euthanasia. This is done with the consent of the patient and the medical practitioners involved are not held criminally liable should the withholding of treatment cause the death of the patient. Relevant constitutional rights will be examined to make a case for the legalisation of physician-assisted euthanasia. These rights include the right to dignity, the right to life, the right to equality, the right to freedom of religion, belief and opinion, and the limitation clause. Common law, case law and statutory law will also be considered. The recommendations of the South African Law Commission in its report (project 86) will be examined as well. An analysis will be conducted on how foreign jurisdictions have accepted physician-assisted euthanasia and implemented legislative measures to safeguard and regulate how medical practitioners practice it. Canada is an example of such a jurisdiction and an analysis has been conducted on how courts in Canada have made a case for the decriminalisation of physician-assisted euthanasia. Canadian courts relied on rights such as the right to life and freedom of opinion. viii When arguing for or against the legalisation of euthanasia, the ethical perspectives of both arguments must be considered. The ‘slippery slope’ will be discussed to demonstrate an ethical argument against euthanasia. The ethical framework of utilitarianism will be discussed as an argument for euthanasia. In line with the title of this research, the physician’s role in the process of euthanasia will also be discussed. After weighing the key arguments, this research concludes that physician-assisted euthanasia ought to be legalised in South Africa. Recommendations are further suggested on how euthanasia ought to be regulated should it be legalised. The recommendations serve as a means of addressing the possibility of abuse and illegal conduct from medical practitioners and the public. Through this study, the aim is to contribute to the debate on physician-assisted euthanasia and to advance the development of a euthanasia-related legislation in South Africa. , Thesis (LLM) -- Faculty of Law, School of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-12
The review of a disciplinary finding or sanction in terms of section 158(1)(h) of the labour relations act 66 of 1995
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Balancing an educator’s right to strike and a child’s right to basic education.
- Authors: Maluleke, Mongwena John
- Date: 2024-04
- Subjects: Educational law and legislation , Children's right to education , Basic education
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66128 , vital:74400
- Description: This thesis examines how a fair balance can be realised between the educator’s right to strike and the child’s right to education. International and constitutional frameworks are analysed to uncover South Africa’s position on the two opposing rights and the various balancing approaches available. The study recommends a consensus-based approach to balance the rights of educators with that of the child’s right to education. It further proposes the establishment of a structured and organised forum or institution with the sole purpose of dealing with the rights of educators that compete with the rights of learners. , Thesis (LLD) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Maluleke, Mongwena John
- Date: 2024-04
- Subjects: Educational law and legislation , Children's right to education , Basic education
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66128 , vital:74400
- Description: This thesis examines how a fair balance can be realised between the educator’s right to strike and the child’s right to education. International and constitutional frameworks are analysed to uncover South Africa’s position on the two opposing rights and the various balancing approaches available. The study recommends a consensus-based approach to balance the rights of educators with that of the child’s right to education. It further proposes the establishment of a structured and organised forum or institution with the sole purpose of dealing with the rights of educators that compete with the rights of learners. , Thesis (LLD) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
Collective bargaining challenges in the public service sector
- Authors: Maleka, Reuben Mpono
- Date: 2024-04
- Subjects: Collective bargaining -- South Africa , Collective labor agreements -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66283 , vital:74474
- Description: The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement,1 but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”.2 The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining3 between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest.4 In practice, collective bargaining involves demand and concession between parties up until a compromise can be found.5 Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise.6 Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making.7 The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place , Thesis (LLM) -- Faculty of Law, Department of Mercantile Law, 2024 , The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement, but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”. The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest. In practice, collective bargaining involves demand and concession between parties up until a compromise can be found. Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise. Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making. The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place
- Full Text:
- Date Issued: 2024-04
- Authors: Maleka, Reuben Mpono
- Date: 2024-04
- Subjects: Collective bargaining -- South Africa , Collective labor agreements -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66283 , vital:74474
- Description: The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement,1 but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”.2 The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining3 between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest.4 In practice, collective bargaining involves demand and concession between parties up until a compromise can be found.5 Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise.6 Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making.7 The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place , Thesis (LLM) -- Faculty of Law, Department of Mercantile Law, 2024 , The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement, but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”. The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest. In practice, collective bargaining involves demand and concession between parties up until a compromise can be found. Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise. Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making. The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place
- Full Text:
- Date Issued: 2024-04
Defining and regulating de facto and shadow directors: lessons from New Zealand
- Authors: Botha, Bernardus Hermanus
- Date: 2024-04
- Subjects: Business law , Companies Act 71 of 2008. , Company Management
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63059 , vital:73182
- Description: The term ‘director’ is commonly limited to those persons who have been validly appointed as directors. These directors are referred to as de jure directors. However, this is not the only type of director found in practical corporate settings. There are also those who have not been validly appointed as a director, who nonetheless act as directors and who are held out by companies as such. These persons are known as de facto directors. An individual who has not been validly appointed as a director, who is not held out by a company as such, but who still exercises some measure of control over the affairs of a company, is known as a shadow director. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen fit to regulate de facto and shadow directors and has done so for over 70 years. Owing to the ambiguous wording of the definition of ‘director’ contained in the Companies Act, there is uncertainty whether the current definition in the Companies Act 71 of 2008 extends to de facto and shadow directors. This uncertainty resulted in the non-regulation of these forms of directorship. The Act only applies to those individuals who fall within the definition of ‘director’. The practical effect of this is the absence of clear avenues of accountability to those who occupy a position of power within a company without being appointed as a de jure director. Considering this, the core objectives of this research are to illustrate the far-reaching consequences of the non-regulation of de facto and shadow directors and how this problem may be remedied. , Thesis (LLM) -- Faculty of Law
- Full Text:
- Date Issued: 2024-04
- Authors: Botha, Bernardus Hermanus
- Date: 2024-04
- Subjects: Business law , Companies Act 71 of 2008. , Company Management
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63059 , vital:73182
- Description: The term ‘director’ is commonly limited to those persons who have been validly appointed as directors. These directors are referred to as de jure directors. However, this is not the only type of director found in practical corporate settings. There are also those who have not been validly appointed as a director, who nonetheless act as directors and who are held out by companies as such. These persons are known as de facto directors. An individual who has not been validly appointed as a director, who is not held out by a company as such, but who still exercises some measure of control over the affairs of a company, is known as a shadow director. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen fit to regulate de facto and shadow directors and has done so for over 70 years. Owing to the ambiguous wording of the definition of ‘director’ contained in the Companies Act, there is uncertainty whether the current definition in the Companies Act 71 of 2008 extends to de facto and shadow directors. This uncertainty resulted in the non-regulation of these forms of directorship. The Act only applies to those individuals who fall within the definition of ‘director’. The practical effect of this is the absence of clear avenues of accountability to those who occupy a position of power within a company without being appointed as a de jure director. Considering this, the core objectives of this research are to illustrate the far-reaching consequences of the non-regulation of de facto and shadow directors and how this problem may be remedied. , Thesis (LLM) -- Faculty of Law
- Full Text:
- Date Issued: 2024-04
Discipline and dismissal of employees For testing positive for cannabis
- Authors: Syce, Donato Burchelle
- Date: 2024-04
- Subjects: Occupational health , Cannabis , Substance use
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63071 , vital:73184
- Description: Employers are legally obligated to provide a safe working environment for all employees. They are permitted to enforce rules that regulate the use of cannabis, including a total prohibition thereof in the workplace. Most employers adopt a policy with a zero-tolerance approach to substance abuse in the workplace, especially considering the negative effects of substances. Cannabis is regarded as a drug and the effects of cannabis may negatively affect the health of employees. In most instances, users develop cognitive impairment which may result in decreased working memory function. Therefore, employers must test employees when they suspect that an employee have contravened a workplace policy. There are various tests that can be used to detect THC, the preferred method for testing employees is a urine test. Upon testing an employee, the test may show a positive result for the previous use of cannabis, but it does not determine the level of impairment. However, employers are still required to take the necessary disciplinary action against employees. In the following chapter, I shall discuss the judicial approach towards employees who have tested positive for cannabis. , Thesis (LLM) -- Faculty of Law,(2024)
- Full Text:
- Date Issued: 2024-04
- Authors: Syce, Donato Burchelle
- Date: 2024-04
- Subjects: Occupational health , Cannabis , Substance use
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63071 , vital:73184
- Description: Employers are legally obligated to provide a safe working environment for all employees. They are permitted to enforce rules that regulate the use of cannabis, including a total prohibition thereof in the workplace. Most employers adopt a policy with a zero-tolerance approach to substance abuse in the workplace, especially considering the negative effects of substances. Cannabis is regarded as a drug and the effects of cannabis may negatively affect the health of employees. In most instances, users develop cognitive impairment which may result in decreased working memory function. Therefore, employers must test employees when they suspect that an employee have contravened a workplace policy. There are various tests that can be used to detect THC, the preferred method for testing employees is a urine test. Upon testing an employee, the test may show a positive result for the previous use of cannabis, but it does not determine the level of impairment. However, employers are still required to take the necessary disciplinary action against employees. In the following chapter, I shall discuss the judicial approach towards employees who have tested positive for cannabis. , Thesis (LLM) -- Faculty of Law,(2024)
- Full Text:
- Date Issued: 2024-04
Minimum sentencing disparities in the criminal justice system
- Authors: Minnaar, Evolia Geraldine
- Date: 2024-04
- Subjects: Sentences (Criminal procedure) , Sentencing disparities , Criminal Law Amendment Act
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66229 , vital:74444
- Description: In South Africa, judicial officers have wide discretionary authority with regard to both the type of and the severity of the sentence. Sentencing is a particularly challenging part of the criminal justice process. It is challenging, because South Africa's sentencing system does not have uniform sentencing guidelines that can assist presiding officers in exercising their judicial discretion in the sentencing process. Nor does South Africa have a Sentencing Council to establish sentencing guidelines. Parliament adopted the Criminal Law Amendment Act, which provides for mandatory minimum sentences for certain serious and violent offences. One of the legislation's intended objectives was to advance consistency and avoid disparities in sentencing. The legislation has limited, but not eliminated the court's discretion. A deviation or an escape clause is provided to sentencing courts to depart from the prescribed minimum sentence. If a sentencing court is satisfied that substantial and compelling circumstances exist, departure is justified and a lesser sentence should be imposed. Legislature does not define the phrase "substantial and compelling circumstances". Nor does legislature provide guidance, regarding what the phrase constitutes and does not constitute. Thus, courts have to exercise their judicial discretion when imposing sentences. When interpreting the phrase substantial and compelling circumstances, the courts generally consider that the legislature prescribed minimum sentences as the sentences that should ordinarily be imposed for serious offences. The courts further consider that the legislature aimed to ensure a severe, standardised and consistent response from the courts. Thus, courts should not depart from the prescribed minimum sentence for lightly and flimsy reasons. Further, the traditional mitigating and aggravating factors should still be considered in sentencing. Additionally, if the court considers that the prescribed sentence will be unjust, the court has to depart from the prescribed sentence and impose a lesser sentence. The courts, however, interpret the abovementioned principles inconsistently. This is attributed to the legislature's failure to provide clear, uniform and adequate guidelines to the courts. Disparities in sentencing still permeate South Africa's sentencing system, which creates a challenge to achieve consistency in sentencing. The conclusion of this research is that there is still dissatisfaction with sentencing among the public and sentenced prisoners. Another conclusion of this research is that the legislation has exacerbated prison overcrowding. A further conclusion in this research is that the legislation has not achieved one of its fundamental objectives, namely advancing consistency and avoiding disparities in sentencing. Comparative research is also done in order to see how South Africa's system can be developed and/or improved. , Thesis (LMM) -- Faculty of Law, Department of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Minnaar, Evolia Geraldine
- Date: 2024-04
- Subjects: Sentences (Criminal procedure) , Sentencing disparities , Criminal Law Amendment Act
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66229 , vital:74444
- Description: In South Africa, judicial officers have wide discretionary authority with regard to both the type of and the severity of the sentence. Sentencing is a particularly challenging part of the criminal justice process. It is challenging, because South Africa's sentencing system does not have uniform sentencing guidelines that can assist presiding officers in exercising their judicial discretion in the sentencing process. Nor does South Africa have a Sentencing Council to establish sentencing guidelines. Parliament adopted the Criminal Law Amendment Act, which provides for mandatory minimum sentences for certain serious and violent offences. One of the legislation's intended objectives was to advance consistency and avoid disparities in sentencing. The legislation has limited, but not eliminated the court's discretion. A deviation or an escape clause is provided to sentencing courts to depart from the prescribed minimum sentence. If a sentencing court is satisfied that substantial and compelling circumstances exist, departure is justified and a lesser sentence should be imposed. Legislature does not define the phrase "substantial and compelling circumstances". Nor does legislature provide guidance, regarding what the phrase constitutes and does not constitute. Thus, courts have to exercise their judicial discretion when imposing sentences. When interpreting the phrase substantial and compelling circumstances, the courts generally consider that the legislature prescribed minimum sentences as the sentences that should ordinarily be imposed for serious offences. The courts further consider that the legislature aimed to ensure a severe, standardised and consistent response from the courts. Thus, courts should not depart from the prescribed minimum sentence for lightly and flimsy reasons. Further, the traditional mitigating and aggravating factors should still be considered in sentencing. Additionally, if the court considers that the prescribed sentence will be unjust, the court has to depart from the prescribed sentence and impose a lesser sentence. The courts, however, interpret the abovementioned principles inconsistently. This is attributed to the legislature's failure to provide clear, uniform and adequate guidelines to the courts. Disparities in sentencing still permeate South Africa's sentencing system, which creates a challenge to achieve consistency in sentencing. The conclusion of this research is that there is still dissatisfaction with sentencing among the public and sentenced prisoners. Another conclusion of this research is that the legislation has exacerbated prison overcrowding. A further conclusion in this research is that the legislation has not achieved one of its fundamental objectives, namely advancing consistency and avoiding disparities in sentencing. Comparative research is also done in order to see how South Africa's system can be developed and/or improved. , Thesis (LMM) -- Faculty of Law, Department of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-04
Public policy considerations and the enforcement of restraint of trade agreements.
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
Reasonable accommodation for persons with disabilities at the workplace
- Authors: Addae, Charles Kwadwo
- Date: 2024-04
- Subjects: Employment Equity Act 55 of 1998 , Disability rights , Disability in the work place
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66140 , vital:74420
- Description: In recent years, there has been a growing recognition of the importance of inclusivity and equal opportunities for individuals with disabilities in the workplace. This thesis aims to contribute to this discourse by examining the issue of reasonable accommodation for disabled employees, with a specific focus on the South African context. The International Labour Organisation (ILO) and the United Nations (UN) Convention on the Rights of Persons with Disabilities provide important frameworks for promoting inclusivity and equal opportunities for disabled individuals in employment. These global standards emphasise the need for reasonable accommodation, which refers to the adjustments and modifications made to the work environment or job duties to enable disabled employees to perform their tasks effectively. In South Africa, the Employment Equity Act 55 of 1998 (EEA) and the Labour Relations Act 66 of 1995 (LRA) serve as the legal framework for addressing disability rights in the workplace. These acts outline the obligations of employers to provide reasonable accommodation and protect disabled employees from discrimination. By analysing the specific provisions within the EEA and LRA, this research aims to gain insights into how South Africa addresses and implements reasonable accommodation measures. By synthesizing the perspectives of the ILO, the UN Convention, and the South African legal framework, this study aims to provide a comprehensive understanding of the challenges, successes, and potential areas for improvement in achieving workplace inclusivity for individuals with disabilities. It will examine the barriers that disabled employees face in accessing reasonable accommodation, such as attitudinal barriers, lack of awareness, and financial constraints. Additionally, it will explore the strategies and initiatives that have been successful in promoting inclusivity and equal opportunities for disabled individuals in the South African workplace. , Thesis (MSc) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Addae, Charles Kwadwo
- Date: 2024-04
- Subjects: Employment Equity Act 55 of 1998 , Disability rights , Disability in the work place
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66140 , vital:74420
- Description: In recent years, there has been a growing recognition of the importance of inclusivity and equal opportunities for individuals with disabilities in the workplace. This thesis aims to contribute to this discourse by examining the issue of reasonable accommodation for disabled employees, with a specific focus on the South African context. The International Labour Organisation (ILO) and the United Nations (UN) Convention on the Rights of Persons with Disabilities provide important frameworks for promoting inclusivity and equal opportunities for disabled individuals in employment. These global standards emphasise the need for reasonable accommodation, which refers to the adjustments and modifications made to the work environment or job duties to enable disabled employees to perform their tasks effectively. In South Africa, the Employment Equity Act 55 of 1998 (EEA) and the Labour Relations Act 66 of 1995 (LRA) serve as the legal framework for addressing disability rights in the workplace. These acts outline the obligations of employers to provide reasonable accommodation and protect disabled employees from discrimination. By analysing the specific provisions within the EEA and LRA, this research aims to gain insights into how South Africa addresses and implements reasonable accommodation measures. By synthesizing the perspectives of the ILO, the UN Convention, and the South African legal framework, this study aims to provide a comprehensive understanding of the challenges, successes, and potential areas for improvement in achieving workplace inclusivity for individuals with disabilities. It will examine the barriers that disabled employees face in accessing reasonable accommodation, such as attitudinal barriers, lack of awareness, and financial constraints. Additionally, it will explore the strategies and initiatives that have been successful in promoting inclusivity and equal opportunities for disabled individuals in the South African workplace. , Thesis (MSc) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
Regulation of sexual harassment at the workplace in Namibia
- Authors: Kayama, Ohms Moven
- Date: 2024-04
- Subjects: Workplace Sexual Harassments , Labour Law , Sex discrimination in employment
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64695 , vital:73862
- Description: Many Namibians are driven by the need for income and economic sustainability, pushing them to seek employment and make a living for themselves. However, what appears to be just participating in economic activities can be a risky and traumatic experience for some workers. For years, many have had to balance their job responsibilities while enduring discrimination, bullying, violence, and harassment in the workplace. Sexual harassment has been a major problem in the workplace, with women being the primary targets and victims. Studies have shown that gender inequality is one of the leading causes of sexual harassment in the workplace. Within the above context, this treatise aimed at answering to what extent Namibia's legislative framework regulates sexual harassment in the workplace. Namibia's legal framework was tested against the global instruments to answer the question. It was found that Namibia's legislative framework does regulate sexual harassment. However, some several gaps were identified. First, there is ambiguity and scope of legal definitions as the current definition of sexual harassment in section 5(7)(b) of the LA is not comprehensive enough. It fails to explicitly include both "quid pro quo" and "hostile environment" sexual harassment. This ambiguity could hinder victims' ability to seek justice and the legal system to prosecute offenders effectively. Second, there is an inefficacy of reporting structures, which is a significant barrier. Victims often face unclear and inefficient procedures, contributing to underreporting and unresolved cases. Developing straightforward, accessible, and efficient reporting mechanisms is crucial. Third, the absence of comprehensive workplace policies against sexual harassment exacerbates the issue. While developing a Code of Good Practice is positive, its implementation status and effectiveness remain uncertain. Another gap relates to the protection for whistleblowers and victims, as a lack of adequate legal protection for whistleblowers and witnesses discourages reporting. Strengthening legal protections can empower more individuals to come forward. The gaps identified were developed while comparing Namibia’s legislative framework to South Africa to determine whether lessons can be learned as it was found that lessons could be learned. Further recommendations is that Namibia should establish a single OHS legislation to address workplace sexual harassment by standardising policies and procedures across various industries, improving reporting standards to measure the occurrence of sexual harassment incidents, and developing a Code of Good Practice regulating sexual harassment. Lastly, it is acknowledged that Namibia's ratification of the Violence and Harassment Convention, 2019 (No. 190) is a welcomed development and shows a positive commitment in its intention to curb sexual violence in the workplace. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Kayama, Ohms Moven
- Date: 2024-04
- Subjects: Workplace Sexual Harassments , Labour Law , Sex discrimination in employment
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64695 , vital:73862
- Description: Many Namibians are driven by the need for income and economic sustainability, pushing them to seek employment and make a living for themselves. However, what appears to be just participating in economic activities can be a risky and traumatic experience for some workers. For years, many have had to balance their job responsibilities while enduring discrimination, bullying, violence, and harassment in the workplace. Sexual harassment has been a major problem in the workplace, with women being the primary targets and victims. Studies have shown that gender inequality is one of the leading causes of sexual harassment in the workplace. Within the above context, this treatise aimed at answering to what extent Namibia's legislative framework regulates sexual harassment in the workplace. Namibia's legal framework was tested against the global instruments to answer the question. It was found that Namibia's legislative framework does regulate sexual harassment. However, some several gaps were identified. First, there is ambiguity and scope of legal definitions as the current definition of sexual harassment in section 5(7)(b) of the LA is not comprehensive enough. It fails to explicitly include both "quid pro quo" and "hostile environment" sexual harassment. This ambiguity could hinder victims' ability to seek justice and the legal system to prosecute offenders effectively. Second, there is an inefficacy of reporting structures, which is a significant barrier. Victims often face unclear and inefficient procedures, contributing to underreporting and unresolved cases. Developing straightforward, accessible, and efficient reporting mechanisms is crucial. Third, the absence of comprehensive workplace policies against sexual harassment exacerbates the issue. While developing a Code of Good Practice is positive, its implementation status and effectiveness remain uncertain. Another gap relates to the protection for whistleblowers and victims, as a lack of adequate legal protection for whistleblowers and witnesses discourages reporting. Strengthening legal protections can empower more individuals to come forward. The gaps identified were developed while comparing Namibia’s legislative framework to South Africa to determine whether lessons can be learned as it was found that lessons could be learned. Further recommendations is that Namibia should establish a single OHS legislation to address workplace sexual harassment by standardising policies and procedures across various industries, improving reporting standards to measure the occurrence of sexual harassment incidents, and developing a Code of Good Practice regulating sexual harassment. Lastly, it is acknowledged that Namibia's ratification of the Violence and Harassment Convention, 2019 (No. 190) is a welcomed development and shows a positive commitment in its intention to curb sexual violence in the workplace. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
Resignation in employment Law
- Authors: Kheswa, Zimasa
- Date: 2024-04
- Subjects: Resignation , Employees--Dismissal , Disciplinary--actions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65296 , vital:74089
- Description: This treatise provides a comprehensive analysis of the legal framework governing resignations in South Africa. It examines the statutory provisions, regulations, and general principles that underpin employment termination, with a focus on voluntary resignation, constructive dismissal, and termination during disciplinary proceedings. Through an analysis of important case law, the treatise explores the practical challenges and legal ambiguities employers and employees face when navigating the resignation process. The treatise also conducts a detailed comparative legal analysis of resignation laws, focusing on the United Kingdom’s approach and how it contrasts with and could potentially inform legal practices in South Africa. Based on the findings, the treatise proposes several recommendations for improving the legal framework governing resignations in South Africa, including enacting clearer statutory guidelines, encouraging consistent judicial rulings, adopting best practices from the United Kingdom’s legal system, and facilitating stakeholder engagement. By implementing these recommendations, South Africa can create a more coherent legal framework for resignations, promoting fairness, certainty, and efficiency in employer-employee relations. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Kheswa, Zimasa
- Date: 2024-04
- Subjects: Resignation , Employees--Dismissal , Disciplinary--actions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65296 , vital:74089
- Description: This treatise provides a comprehensive analysis of the legal framework governing resignations in South Africa. It examines the statutory provisions, regulations, and general principles that underpin employment termination, with a focus on voluntary resignation, constructive dismissal, and termination during disciplinary proceedings. Through an analysis of important case law, the treatise explores the practical challenges and legal ambiguities employers and employees face when navigating the resignation process. The treatise also conducts a detailed comparative legal analysis of resignation laws, focusing on the United Kingdom’s approach and how it contrasts with and could potentially inform legal practices in South Africa. Based on the findings, the treatise proposes several recommendations for improving the legal framework governing resignations in South Africa, including enacting clearer statutory guidelines, encouraging consistent judicial rulings, adopting best practices from the United Kingdom’s legal system, and facilitating stakeholder engagement. By implementing these recommendations, South Africa can create a more coherent legal framework for resignations, promoting fairness, certainty, and efficiency in employer-employee relations. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
South Africa’s regulation of mineral mining activities in the area: lessons from the United Kingdom
- Authors: Karomo, Adelaide Aquiline
- Date: 2024-04
- Subjects: Mineral mining activities , Mining law , Deep Sea mining Act
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64411 , vital:73700
- Description: As they anticipate the benefits associated with mining polymetallic nodules, polymetallic sulphides and ferromanganese crusts, several States are currently exploring or sponsoring State-owned enterprises and private persons to explore for these mineral resources in the seabed, ocean floor and subsoil beyond national jurisdiction (the Area). However, Africa remains the only region that is not actively participating. To guide South Africa in developing a deep seabed mining regime the thesis begins by identifying the international law regulating the Area and the activities therein. Since the mineral resources in the Area have been declared the common heritage of mankind, this principle as regulated by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), and modified by the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 forms an essential component of this study. As such, the thesis determines, amongst others, the requirements for participating in mining activities in the Area (as set out in Part XI of UNCLOS) and establishes that developing a legislative framework is crucial to exempt UNCLOS States parties from liability associated with the damage caused by sponsored activities. Based on the obligations in international law, the thesis zooms in on three aspects concerning the regulation of the activities in the Area: (i) mining concessions, (ii) the relevant payment system, and (iii) environmental protection measures. In terms of these aspects, how the United Kingdom’s deep seabed mining regime regulates activities in the Area is examined. For this assessment, the thesis pays particular attention to the Deep Sea Mining Act and the domestic licences granted to UK Seabed Resources Ltd (UKSRL). In identifying lessons for South Africa, the thesis assesses the extent to which the United Kingdom’s regime complies with the international law framework and highlights the inconsistencies and legislative gaps. Thereafter, the thesis examines the South African legislative instruments regulating mining activities at sea, such as the Mineral and Petroleum Resources Development Act and the National Environmental Management Act, to determine whether their scope should be amended to regulate mining activities in the Area. As per the observations from international law and the lessons learnt from the United Kingdom's regulatory framework, the thesis argues that South Africa’s current mining framework should not be amended; separate deep seabed mining-specific legislation must be adopted. The thesis concludes by setting out the recommendations for developing such legislation. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Karomo, Adelaide Aquiline
- Date: 2024-04
- Subjects: Mineral mining activities , Mining law , Deep Sea mining Act
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64411 , vital:73700
- Description: As they anticipate the benefits associated with mining polymetallic nodules, polymetallic sulphides and ferromanganese crusts, several States are currently exploring or sponsoring State-owned enterprises and private persons to explore for these mineral resources in the seabed, ocean floor and subsoil beyond national jurisdiction (the Area). However, Africa remains the only region that is not actively participating. To guide South Africa in developing a deep seabed mining regime the thesis begins by identifying the international law regulating the Area and the activities therein. Since the mineral resources in the Area have been declared the common heritage of mankind, this principle as regulated by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), and modified by the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 forms an essential component of this study. As such, the thesis determines, amongst others, the requirements for participating in mining activities in the Area (as set out in Part XI of UNCLOS) and establishes that developing a legislative framework is crucial to exempt UNCLOS States parties from liability associated with the damage caused by sponsored activities. Based on the obligations in international law, the thesis zooms in on three aspects concerning the regulation of the activities in the Area: (i) mining concessions, (ii) the relevant payment system, and (iii) environmental protection measures. In terms of these aspects, how the United Kingdom’s deep seabed mining regime regulates activities in the Area is examined. For this assessment, the thesis pays particular attention to the Deep Sea Mining Act and the domestic licences granted to UK Seabed Resources Ltd (UKSRL). In identifying lessons for South Africa, the thesis assesses the extent to which the United Kingdom’s regime complies with the international law framework and highlights the inconsistencies and legislative gaps. Thereafter, the thesis examines the South African legislative instruments regulating mining activities at sea, such as the Mineral and Petroleum Resources Development Act and the National Environmental Management Act, to determine whether their scope should be amended to regulate mining activities in the Area. As per the observations from international law and the lessons learnt from the United Kingdom's regulatory framework, the thesis argues that South Africa’s current mining framework should not be amended; separate deep seabed mining-specific legislation must be adopted. The thesis concludes by setting out the recommendations for developing such legislation. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
Statutory conciliation as a labour-dispute-resolution mechanism
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04