A comparative analysis of mental illness as a defence in criminal law
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
A comparative analysis of the development of performers' rights in the United Kingdom and South Africa
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
A comparative analysis of the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
A comparative study of employment discrimination in South Africa and Canada
- Authors: Dlamini, David Vusi
- Date: 2004
- Subjects: Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11039 , http://hdl.handle.net/10948/330 , Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Description: South Africa and Canada have emerged from a history fraught of inequalities, which were characterised by segregationist practices. Such inequalities have served as an epitome of discrimination taking place in the society and the workplace in both countries. Both South Africa and Canada had their discrimination affecting black peoples (Africans, Indians and Coloureds) and Aboriginal peoples (Indians, Inuits or Métis) respectively, women and people with disabilities. In both countries discrimination has polarised society. It is against this backdrop that both countries have attempted to eliminate unfair discrimination through the promulgation of relevant legislation that seeks to, inter alia, provide the regulatory framework in respect of employment discrimination. With the foregoing in mind, the purpose of this work is the provision of a selection of comparable aspects of employment discrimination in Canada and South Africa. This selection comprises discrimination on the basis of race, gender, sex, pregnancy, age and HIV/AIDS. The study uses, as its departure point, both countries’ constitutional framework to elicit the extent to which protection against unfair discrimination is extended to the workforce. Apart from looking at the constitutional provisions towards the elimination of unfair discrimination, reference is made to specific employment statutory provisions in order to provide a comprehensive and explicit picture of how workplace discrimination in both countries is regulated. The study focuses on substantive law from both countries about the above -mentioned aspects of discrimination. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of discrimination could lead to failure to achieve the objectives of the study. It also looks at specific Canadian and South African case law, judgments of the courts and jurisprudence in the field of employment discrimination in order that the reader is presented with a clearer picture of recent developments in addressing workplace inequalities.
- Full Text:
- Date Issued: 2004
- Authors: Dlamini, David Vusi
- Date: 2004
- Subjects: Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11039 , http://hdl.handle.net/10948/330 , Discrimination in employment -- Law and Legislation -- South Africa , Discrimination in employment -- Law and legislation -- Canada
- Description: South Africa and Canada have emerged from a history fraught of inequalities, which were characterised by segregationist practices. Such inequalities have served as an epitome of discrimination taking place in the society and the workplace in both countries. Both South Africa and Canada had their discrimination affecting black peoples (Africans, Indians and Coloureds) and Aboriginal peoples (Indians, Inuits or Métis) respectively, women and people with disabilities. In both countries discrimination has polarised society. It is against this backdrop that both countries have attempted to eliminate unfair discrimination through the promulgation of relevant legislation that seeks to, inter alia, provide the regulatory framework in respect of employment discrimination. With the foregoing in mind, the purpose of this work is the provision of a selection of comparable aspects of employment discrimination in Canada and South Africa. This selection comprises discrimination on the basis of race, gender, sex, pregnancy, age and HIV/AIDS. The study uses, as its departure point, both countries’ constitutional framework to elicit the extent to which protection against unfair discrimination is extended to the workforce. Apart from looking at the constitutional provisions towards the elimination of unfair discrimination, reference is made to specific employment statutory provisions in order to provide a comprehensive and explicit picture of how workplace discrimination in both countries is regulated. The study focuses on substantive law from both countries about the above -mentioned aspects of discrimination. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of discrimination could lead to failure to achieve the objectives of the study. It also looks at specific Canadian and South African case law, judgments of the courts and jurisprudence in the field of employment discrimination in order that the reader is presented with a clearer picture of recent developments in addressing workplace inequalities.
- Full Text:
- Date Issued: 2004
A comparative study on the effectiveness of minimum service agreements within the public service
- Authors: De Bruin, Frederik Johannes
- Date: 2013
- Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
- Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
- Full Text:
- Date Issued: 2013
- Authors: De Bruin, Frederik Johannes
- Date: 2013
- Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
- Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
- Full Text:
- Date Issued: 2013
A comparison between the approaches to unfair discrimination in employment in South Africa and Nigeria
- Authors: Odeyemi, Hannah Olubunmi
- Date: 2012
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10270 , http://hdl.handle.net/10948/d1012054 , Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Description: Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
- Full Text:
- Date Issued: 2012
- Authors: Odeyemi, Hannah Olubunmi
- Date: 2012
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10270 , http://hdl.handle.net/10948/d1012054 , Discrimination in employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- Nigeria , Unfair labor practices -- South Africa , Unfair labor practices -- Nigeria
- Description: Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
- Full Text:
- Date Issued: 2012
A comparison between the South African and Kenyan labour law systems
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
A comparison of the implementation of equal pay for work of equal value with Canadian law
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
A comparison of the petroleum legislation of gabon and South Africa as instruments of development
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
A comparison of the South African and Namibian labour dispute resolution system
- Authors: Musukubili, Felix
- Date: 2009
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10207 , http://hdl.handle.net/10948/1040 , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Description: The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
- Full Text:
- Date Issued: 2009
- Authors: Musukubili, Felix
- Date: 2009
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10207 , http://hdl.handle.net/10948/1040 , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Description: The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
- Full Text:
- Date Issued: 2009
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
A critical analysis of South African anti-money laundering legislation regarding cryptocurrency
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
A critical analysis of the deductibility of audit fees
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
A critical examination of the regulation of fixed term employment services under South African Labour Laws
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
A critique of dispute resolution in the public service
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011