The constitutional right to legal representation during disciplinary hearings and proceedings before the CCMA
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
A portfolio of original compositions exploring syncretism between Indian and western music
- Authors: Ram, Deepak
- Date: 1996
- Subjects: Raga Music -- India -- History and criticism Music -- History and criticism Jazz -- History and criticism
- Language: English
- Type: Thesis , Masters , MMus
- Identifier: vital:2654 , http://hdl.handle.net/10962/d1002320
- Description: In this dissertation, overviews and detailed examinations of three compositions are presented. These compositions which constitute the portfolio of the M.MUS degree, are an attempt to explore syncretism between Indian and western music. Two of these works are written for a flute quartet (flute, violin, viola and cello) accompanied in part by a mridangam (Indian percussion instrument). The third work is written for a jazz quartet (piano, saxophone, double bass and drums). Syncretism between western and Indian music can take on a variety of forms, and while this concept is not new, there exists no suitable model or framework through which these compositions can be analysed. The approach used In this dissertation IS therefore guided solely by the compositions themselves. The syncretism in these works lies in the use of melodic, rhythmic and timbral elements of Indian music within two ensembles which are essentially western. This dissertation describes each of these elements in their traditional context as well as the method of incorporating them into western ensemble playing.
- Full Text:
- Date Issued: 1996
- Authors: Ram, Deepak
- Date: 1996
- Subjects: Raga Music -- India -- History and criticism Music -- History and criticism Jazz -- History and criticism
- Language: English
- Type: Thesis , Masters , MMus
- Identifier: vital:2654 , http://hdl.handle.net/10962/d1002320
- Description: In this dissertation, overviews and detailed examinations of three compositions are presented. These compositions which constitute the portfolio of the M.MUS degree, are an attempt to explore syncretism between Indian and western music. Two of these works are written for a flute quartet (flute, violin, viola and cello) accompanied in part by a mridangam (Indian percussion instrument). The third work is written for a jazz quartet (piano, saxophone, double bass and drums). Syncretism between western and Indian music can take on a variety of forms, and while this concept is not new, there exists no suitable model or framework through which these compositions can be analysed. The approach used In this dissertation IS therefore guided solely by the compositions themselves. The syncretism in these works lies in the use of melodic, rhythmic and timbral elements of Indian music within two ensembles which are essentially western. This dissertation describes each of these elements in their traditional context as well as the method of incorporating them into western ensemble playing.
- Full Text:
- Date Issued: 1996
The relationship and commitment of an artist to his or her society in a revolutionary environment
- Authors: Jones, Jacqueline
- Date: 1989
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:21163 , http://hdl.handle.net/10962/6662
- Description: From Introduction: In Aesthetics after Modernism, Peter Fuller writes that "good art can only be realized when a creative individual encounters a living tradition with deep tendrils in communal life" (Fuller, 1983: p.36). Yet Francis Bacon believed that "the suffering of people and the differences between people are what have made great art, and not egalitarianism ... " (Brighton and Morris, ' 1977: p.234 and 235). If it is true that art was once an integral part of society and reflected the aspirations of the whole community, its effect on society today has become marginal. Throughout history, especially since the emergence of Romanticism in the nineteenth century, the relationship between art, the artist and the public has become more and more tenuous. The spread of capitalism has resulted in widespread changes in methods of production, literacy, and industrial and technical development. Societies have become so diversified that today art no longer expresses the values and spiritual concerns of a unified society, but rather the individual or the small group. Given this, it has become impossible to return to a system of shared values and beliefs. To preserve some kind of 'truth', art has become a self-evolving activity, autonomous from political, social and economic concerns, and the term 'art for art's sake' is synonymous with many artists working in western capitalist societies.
- Full Text:
- Date Issued: 1989
- Authors: Jones, Jacqueline
- Date: 1989
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:21163 , http://hdl.handle.net/10962/6662
- Description: From Introduction: In Aesthetics after Modernism, Peter Fuller writes that "good art can only be realized when a creative individual encounters a living tradition with deep tendrils in communal life" (Fuller, 1983: p.36). Yet Francis Bacon believed that "the suffering of people and the differences between people are what have made great art, and not egalitarianism ... " (Brighton and Morris, ' 1977: p.234 and 235). If it is true that art was once an integral part of society and reflected the aspirations of the whole community, its effect on society today has become marginal. Throughout history, especially since the emergence of Romanticism in the nineteenth century, the relationship between art, the artist and the public has become more and more tenuous. The spread of capitalism has resulted in widespread changes in methods of production, literacy, and industrial and technical development. Societies have become so diversified that today art no longer expresses the values and spiritual concerns of a unified society, but rather the individual or the small group. Given this, it has become impossible to return to a system of shared values and beliefs. To preserve some kind of 'truth', art has become a self-evolving activity, autonomous from political, social and economic concerns, and the term 'art for art's sake' is synonymous with many artists working in western capitalist societies.
- Full Text:
- Date Issued: 1989
The manipulated photographic images of Man Ray and Moholy-Nagy: "a deconstructural approach"
- Authors: Fry, Roger Bruce
- Date: 1986
- Subjects: Man Ray, 1890-1976 Moholy-Nagy, László, 1895-1946 Photography, Artistic
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:2470 , http://hdl.handle.net/10962/d1009447
- Description: From introduction: In the following essay an emphasis has been placed on manipulated photographic images. Although this implies a whole variety of ways in which these images can be manipulated e.g. in collage, silkscreen etc., the emphasis here is on images that have a fabricated or deliberate manipulation of subject matter to make up the photograph.
- Full Text:
- Date Issued: 1986
- Authors: Fry, Roger Bruce
- Date: 1986
- Subjects: Man Ray, 1890-1976 Moholy-Nagy, László, 1895-1946 Photography, Artistic
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:2470 , http://hdl.handle.net/10962/d1009447
- Description: From introduction: In the following essay an emphasis has been placed on manipulated photographic images. Although this implies a whole variety of ways in which these images can be manipulated e.g. in collage, silkscreen etc., the emphasis here is on images that have a fabricated or deliberate manipulation of subject matter to make up the photograph.
- Full Text:
- Date Issued: 1986
Lesniewski's logic aspects of his protothetic, ontology and mereology
- Authors: Norman, Max
- Date: 1979
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:21148 , http://hdl.handle.net/10962/6596
- Description: Stanislaw Lesniewski (1886-1939) was professor of Philosophy of Mathematics at the University of Warsaw from 1919 until his death. He played a leading role in the Warsaw school of logic and had a lasting influence on many of its members. Lesniewski constructed his first description of mereology in colloquial language and in the absence of a secure logical foundation. In order to effectively distinguish between the collective and distributive notions of class, further description of the distributive notion was necessary. He therefore formalized the distributive concepts in his theory of ontology. Henceforth "ontology" will be used specifically to refer to this theory of Lesniewski. Finally, the construction of protothetic (a system of propositional logic) provided a sound logical foundation of Lesniewski's ontology and mereology. Protothetic, together with his prescribed rules of procedure and his grammar of semantic categories, also facilitated the formalization of his systems in a logically rigorous manner. All of the researchers acknowledge that one of Lesniewski's most fundamental achievements was the development of his deductive systems (protothetic, ontology and mereology).
- Full Text:
- Date Issued: 1979
- Authors: Norman, Max
- Date: 1979
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:21148 , http://hdl.handle.net/10962/6596
- Description: Stanislaw Lesniewski (1886-1939) was professor of Philosophy of Mathematics at the University of Warsaw from 1919 until his death. He played a leading role in the Warsaw school of logic and had a lasting influence on many of its members. Lesniewski constructed his first description of mereology in colloquial language and in the absence of a secure logical foundation. In order to effectively distinguish between the collective and distributive notions of class, further description of the distributive notion was necessary. He therefore formalized the distributive concepts in his theory of ontology. Henceforth "ontology" will be used specifically to refer to this theory of Lesniewski. Finally, the construction of protothetic (a system of propositional logic) provided a sound logical foundation of Lesniewski's ontology and mereology. Protothetic, together with his prescribed rules of procedure and his grammar of semantic categories, also facilitated the formalization of his systems in a logically rigorous manner. All of the researchers acknowledge that one of Lesniewski's most fundamental achievements was the development of his deductive systems (protothetic, ontology and mereology).
- Full Text:
- Date Issued: 1979
The quality of threat in modern painting
- Authors: Radford, Anne Margaret
- Date: 1979
- Subjects: Painting, Modern -- 20th century
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:2453 , http://hdl.handle.net/10962/d1007578
- Description: From Introduction: We not only tolerate violence, we put it on the front pages of our newspapers. One-third or one-fourth of our television programmes use it for the amusement of our children. Condone! My dear friends, we love it." -Karl Menninger, psychiatrist. War is one of the most violent of man's past-times, yet many of the atrocities committed are termed heroic deeds. Andre Malraux, one of the leading writer-philosophers of his day, praised the international involvement by so many writers, artists, etc. in the Spanish Civil War as one of the most wonderful deeds of brotherhood in the history of mankind. There is a strange idolatry that is often accorded to violent criminals such as the early American outlaws, and people like Charles Manson, around whom an entire cult has sprung up. The "aggressive machismo" is something that boys and young men strive to achieve in most countries in the Western world. Scientlsts and philosophers have puzzled these paradoxes for centuries, and this effort to unravel the mystery of violence and aggression bears a fateful significant. For the quality of human life and the survival of man are involved. Robbery, rape, riots, vandalism, are all now part of man's existence. Around the world, violence has soared. In London, violent crimes increased by 39 per cent in three years. Even sports events (the soccer fans stage gang wars at most soccer matches nowadays, especially in England,) and entertainment ---books, movies, television--- have become permeated with violence. It has not always been as bad as this, and as art imitates life, life imitates art, and so aggressive paintings, threatening paintings are now commonplace. In this dissertation, I have studied this development of threat in painting. What follows is the course my study has taken.
- Full Text:
- Date Issued: 1979
- Authors: Radford, Anne Margaret
- Date: 1979
- Subjects: Painting, Modern -- 20th century
- Language: English
- Type: Thesis , Masters , MFA
- Identifier: vital:2453 , http://hdl.handle.net/10962/d1007578
- Description: From Introduction: We not only tolerate violence, we put it on the front pages of our newspapers. One-third or one-fourth of our television programmes use it for the amusement of our children. Condone! My dear friends, we love it." -Karl Menninger, psychiatrist. War is one of the most violent of man's past-times, yet many of the atrocities committed are termed heroic deeds. Andre Malraux, one of the leading writer-philosophers of his day, praised the international involvement by so many writers, artists, etc. in the Spanish Civil War as one of the most wonderful deeds of brotherhood in the history of mankind. There is a strange idolatry that is often accorded to violent criminals such as the early American outlaws, and people like Charles Manson, around whom an entire cult has sprung up. The "aggressive machismo" is something that boys and young men strive to achieve in most countries in the Western world. Scientlsts and philosophers have puzzled these paradoxes for centuries, and this effort to unravel the mystery of violence and aggression bears a fateful significant. For the quality of human life and the survival of man are involved. Robbery, rape, riots, vandalism, are all now part of man's existence. Around the world, violence has soared. In London, violent crimes increased by 39 per cent in three years. Even sports events (the soccer fans stage gang wars at most soccer matches nowadays, especially in England,) and entertainment ---books, movies, television--- have become permeated with violence. It has not always been as bad as this, and as art imitates life, life imitates art, and so aggressive paintings, threatening paintings are now commonplace. In this dissertation, I have studied this development of threat in painting. What follows is the course my study has taken.
- Full Text:
- Date Issued: 1979
A study of the place of the eucharist in ecumenical discussion
- Authors: Reimers, D G
- Date: 1964
- Subjects: Ecumenical movement , Lord's Supper
- Language: English
- Type: Thesis , Bachelor , BDiv
- Identifier: vital:1267 , http://hdl.handle.net/10962/d1013058
- Description: Christian disunity, as has been shown by Rouse and Neill, has been a major problem in the Church from the time of its inception. In Apostolic times Paul had to face serious dissension at Corinth and elsewhere. The great councils of the 4th and 5th centuries were convened to settle doctrinal disputes. The schism between Eastern and Western Christianity, which finally became permanent at about the end of the 12th century, was the result of thoroughgoing doctrinal as well as cultural differences. At the Reformation, Christianity was again drastically divided and between the 16th and 19th centuries,divisions were greatly multiplied. Chap. 1, p. 1.
- Full Text:
- Date Issued: 1964
- Authors: Reimers, D G
- Date: 1964
- Subjects: Ecumenical movement , Lord's Supper
- Language: English
- Type: Thesis , Bachelor , BDiv
- Identifier: vital:1267 , http://hdl.handle.net/10962/d1013058
- Description: Christian disunity, as has been shown by Rouse and Neill, has been a major problem in the Church from the time of its inception. In Apostolic times Paul had to face serious dissension at Corinth and elsewhere. The great councils of the 4th and 5th centuries were convened to settle doctrinal disputes. The schism between Eastern and Western Christianity, which finally became permanent at about the end of the 12th century, was the result of thoroughgoing doctrinal as well as cultural differences. At the Reformation, Christianity was again drastically divided and between the 16th and 19th centuries,divisions were greatly multiplied. Chap. 1, p. 1.
- Full Text:
- Date Issued: 1964