The WTO agreement on technical barriers to trade : a critical appraisal of its implementation within the Southern African Development Community
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017
An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
- Full Text:
- Date Issued: 2017
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
- Full Text:
- Date Issued: 2017
Effecting social justice during conciliation and CON-ARB processes conducted at the CCMA and bargaining councils
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
Decolonising the regulation of the right to strike in South Africa : an analysis
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
Help or hindrance? a critical analysis of the agreement on sanitary and phytosanitary measures, and its effects on developing countries
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017
The social security law position of employees involved in motor vehicle accidents
- Authors: Njamela, Marrof Zalisile
- Date: 2017
- Subjects: Social security -- Law and legislation Traffic accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20121 , vital:29126
- Description: The primary purpose of the study is to highlight the social security law position of employees involved in MVAs. The study concludes and notes that: The current social security system provides an inadequate prevention strategy for employees involved in MVAs. A blanket program of fitness for work as an occupational accident prevention tool should be legislated and be part of the OHSA general duties of employers to their employees. A social security system that attempts to address loss of ability to earn as a result of occupational injury must incorporate an integrated approach towards prevention of risks, compensation and rehabilitation. Social security legal instruments currently providing compensation for employees involved in MVAs (RAF and COIDA) are promulgated for more benefits. A RTW plan, Vocational assessment and rehabilitation of injured employees, all processes that will aid continued employment for injured employees, will be included. This will ensure that employees continue to earn income which forms the basis of social security.
- Full Text:
- Date Issued: 2017
- Authors: Njamela, Marrof Zalisile
- Date: 2017
- Subjects: Social security -- Law and legislation Traffic accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20121 , vital:29126
- Description: The primary purpose of the study is to highlight the social security law position of employees involved in MVAs. The study concludes and notes that: The current social security system provides an inadequate prevention strategy for employees involved in MVAs. A blanket program of fitness for work as an occupational accident prevention tool should be legislated and be part of the OHSA general duties of employers to their employees. A social security system that attempts to address loss of ability to earn as a result of occupational injury must incorporate an integrated approach towards prevention of risks, compensation and rehabilitation. Social security legal instruments currently providing compensation for employees involved in MVAs (RAF and COIDA) are promulgated for more benefits. A RTW plan, Vocational assessment and rehabilitation of injured employees, all processes that will aid continued employment for injured employees, will be included. This will ensure that employees continue to earn income which forms the basis of social security.
- Full Text:
- Date Issued: 2017
Recent development concerning the unfair labour practice relating to promotion
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017
The broadcasting of criminal trials : upholding the freedom of expression or undermining the right to fair trial?
- Authors: Nunu, Sukoluhle Belinda
- Date: 2017
- Subjects: Free press and fair trial -- South Africa Freedom of expression -- South Africa Freedom of the press -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2832 , vital:28102
- Description: This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.
- Full Text:
- Date Issued: 2017
- Authors: Nunu, Sukoluhle Belinda
- Date: 2017
- Subjects: Free press and fair trial -- South Africa Freedom of expression -- South Africa Freedom of the press -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2832 , vital:28102
- Description: This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.
- Full Text:
- Date Issued: 2017
Cross-border assistance in the recovery of foreign tax debt
- Authors: Barnard, Hugo
- Date: 2017
- Subjects: Taxation -- South Africa Tax administration and procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15989 , vital:28302
- Description: Internationally, there is a growing drive towards inter-governmental assistance with tax matters, including assistance in the collection of outstanding tax debt. The purpose of this study is the consider the development of South Africa’s ability to assist with the collection of foreign tax debt. The South African common law revenue rule precludes South Africa from rendering assistance with the recovery of a foreign tax debt. The revenue rule, however, may be abrogated through legislation. Analysis of section 93 of the Income Tax Act1 and section 185 of the Tax Administration Act2 indicates that a pre-requisite for South Africa to render assistance with the collection of a tax debt is the existence of an international tax agreement between South Africa and the requesting state which makes provisions for such assistance. It was also found that the South African Revenue Service (SARS) would not be able to rely on section 172 of the Tax Administration Act in order to obtain a civil judgement for recovery of a foreign tax debt. Interpretation of these provisions in light of the Constitution3 and the Promotion of Administrative Justice Act4 (PAJA) indicates that they do not violate the Constitution, but actions taken by SARS may be subject to judicial review under the PAJA. After analysis of South Africa’s bilateral international tax agreements, it was found that 22 agreements contain provisions for assistance with collection of a tax debt. A review of the Multilateral Convention for Mutual Administrative Assistance in Tax Matters indicates that South Africa and 73 other countries are bound by it. Analysis of the provisions of the international tax agreements and the South African case law dealing with conflicts between international agreements and domestic legislation indicates that the South African courts would give preference to the provisions of the international agreement over domestic legislation in the case of a conflict. A review of selected cases involving assistance provisions in international tax agreements suggests that the South African courts will apply the assistance provisions to taxes that arose prior to the effective date of the assistance provisions.
- Full Text:
- Date Issued: 2017
- Authors: Barnard, Hugo
- Date: 2017
- Subjects: Taxation -- South Africa Tax administration and procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15989 , vital:28302
- Description: Internationally, there is a growing drive towards inter-governmental assistance with tax matters, including assistance in the collection of outstanding tax debt. The purpose of this study is the consider the development of South Africa’s ability to assist with the collection of foreign tax debt. The South African common law revenue rule precludes South Africa from rendering assistance with the recovery of a foreign tax debt. The revenue rule, however, may be abrogated through legislation. Analysis of section 93 of the Income Tax Act1 and section 185 of the Tax Administration Act2 indicates that a pre-requisite for South Africa to render assistance with the collection of a tax debt is the existence of an international tax agreement between South Africa and the requesting state which makes provisions for such assistance. It was also found that the South African Revenue Service (SARS) would not be able to rely on section 172 of the Tax Administration Act in order to obtain a civil judgement for recovery of a foreign tax debt. Interpretation of these provisions in light of the Constitution3 and the Promotion of Administrative Justice Act4 (PAJA) indicates that they do not violate the Constitution, but actions taken by SARS may be subject to judicial review under the PAJA. After analysis of South Africa’s bilateral international tax agreements, it was found that 22 agreements contain provisions for assistance with collection of a tax debt. A review of the Multilateral Convention for Mutual Administrative Assistance in Tax Matters indicates that South Africa and 73 other countries are bound by it. Analysis of the provisions of the international tax agreements and the South African case law dealing with conflicts between international agreements and domestic legislation indicates that the South African courts would give preference to the provisions of the international agreement over domestic legislation in the case of a conflict. A review of selected cases involving assistance provisions in international tax agreements suggests that the South African courts will apply the assistance provisions to taxes that arose prior to the effective date of the assistance provisions.
- Full Text:
- Date Issued: 2017
Determining jurisdiction at conciliation and arbitration
- Authors: Snyman, Chanel
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration -- Rules and practice Arbitration, Industrial -- South Africa , Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20648 , vital:29365
- Description: Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.
- Full Text:
- Date Issued: 2017
- Authors: Snyman, Chanel
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration -- Rules and practice Arbitration, Industrial -- South Africa , Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20648 , vital:29365
- Description: Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.
- Full Text:
- Date Issued: 2017
The right to engage in collective bargaining
- Authors: Oliphant, Lukhanyo Shane
- Date: 2017
- Subjects: Collective bargaining -- South Africa -- Eastern Cape Labor laws and legislation -- South Africa , Industrial relations -- South Africa Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19463 , vital:28881
- Description: The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.
- Full Text:
- Date Issued: 2017
- Authors: Oliphant, Lukhanyo Shane
- Date: 2017
- Subjects: Collective bargaining -- South Africa -- Eastern Cape Labor laws and legislation -- South Africa , Industrial relations -- South Africa Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19463 , vital:28881
- Description: The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.
- Full Text:
- Date Issued: 2017
The fairness of sanctions for misconduct dismissals
- Matoti, Kenneth Augustus Linda
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
Gender-based affirmative action in the appointment of High Court judges
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
The role of the CCMA to mitigate job losses in the context of operational requirements dismissal
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
The procedural fairness requirement in suspensions
- Authors: Japtha, Louisa Dihelena
- Date: 2017
- Subjects: Labor discipline -- Law and legislation -- South Africa Employees -- Complaints against -- South Africa , Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17603 , vital:28400
- Description: The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.
- Full Text:
- Date Issued: 2017
- Authors: Japtha, Louisa Dihelena
- Date: 2017
- Subjects: Labor discipline -- Law and legislation -- South Africa Employees -- Complaints against -- South Africa , Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17603 , vital:28400
- Description: The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.
- Full Text:
- Date Issued: 2017
Appointment and promotion disputes in the public education sector
- Authors: Rustin, Jonavon Keith
- Date: 2017
- Subjects: Labor disputes -- South Africa Education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20277 , vital:29182
- Description: Promotions and appointments in the Public Education Sector had led to many disputes that were referred to the Education Labour Relations Council (the "ELRC"). For a long time most disputes referred to the ELRC concerned promotion disputes. In this treatise the applicable law relating to the promotions and appointments is described and evaluated. Shortly before the completion of the treatise a collective agreement was concluded under the auspices of the ELRC with a view to regulating appointments and promotions. The historical background is traced and the present legislative framework is explained. Thereafter the ELRC Resolutions dealing with the topic discussed and the new collective agreement is unpacked.
- Full Text: false
- Date Issued: 2017
- Authors: Rustin, Jonavon Keith
- Date: 2017
- Subjects: Labor disputes -- South Africa Education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20277 , vital:29182
- Description: Promotions and appointments in the Public Education Sector had led to many disputes that were referred to the Education Labour Relations Council (the "ELRC"). For a long time most disputes referred to the ELRC concerned promotion disputes. In this treatise the applicable law relating to the promotions and appointments is described and evaluated. Shortly before the completion of the treatise a collective agreement was concluded under the auspices of the ELRC with a view to regulating appointments and promotions. The historical background is traced and the present legislative framework is explained. Thereafter the ELRC Resolutions dealing with the topic discussed and the new collective agreement is unpacked.
- Full Text: false
- Date Issued: 2017
The constitutionality of Section 14 of the Employment of Educators Act
- Authors: Delport, Gerhardus Jordaan
- Date: 2017
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15479 , vital:28257
- Description: The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.
- Full Text:
- Date Issued: 2017
- Authors: Delport, Gerhardus Jordaan
- Date: 2017
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15479 , vital:28257
- Description: The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.
- Full Text:
- Date Issued: 2017
The combined exclusive maritime zone of Africa
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
The effect of recent amendments to the LRA within the context of collective bargaining
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017