Giving effect to the rights of remand detainees
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
National minimum wage : a comparative study between Germany and South Africa
- Authors: Tshete, Vusumzi Victor
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51183 , vital:43227
- Description: This comparative research study attempted to provide the comparative analysis between the Germany’s MiLoG and the South African NMWA. The study has adopted the ILO definition of the Minimum Wage as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by a collective agreement or an individual contract The Desk review was an appropriate data collection method for the present research studies. Desk research refers to secondary data that was collected without fieldwork. This included reviewal of libraries and the internet, that includes Journals; newspapers; clippings; reports; government statistics; dictionaries; books, On-line databases, Internet sources, legislations and case laws. The multiple research questions that will be addressed by the study question involve the regulation of the implementation of the NMW, the effectiveness and efficiency of the implementation of the NMW between South Africa and Germany, the impact of the NMW in addressing inequality, poverty and unemployment or socio-economic challenges, as well the overall role of the NMW in the entire labour between the two countries. The present study conducted a literature review on the historical development of the Minimum Wage in South Africa and Germany, the legislative framework around the Minimum Wage in both countries. The literature review also covered the impact of NMW on poverty alleviation and Wage inequalities. The literature further covered, the differences between the implementation of the MiLoG in the case of Germany and the NMWA in the case of South Africa. The literature also covered adjusting amendment and monitoring compliance including the best practices. The findings of the study is that the overarching purpose of introducing a NMW had multi- faceted purpose function such as of transforming the country’s inordinately unequal wage structure while at the same time redressing the inherent poverty, inequalities and transformation of the unequal wage structures both in South Africa and Germany. The Minimum Wage is implemented to prevent workers from earning very low wages. In both 3 countries the Minimum Wage is backed by the legislative framework. Processes to measure and enforce compliance are prevalent in both countries; however, the study found that it is very sophisticated to estimate the exact extent of non-compliance. The study further revealed that the effectiveness of Minimum Wages was seen to depend entirely on their policy design, implementation, and adoption as well as compliance measures. The success of the Minimum Wage solely depend on the compliance rate by employers, hence the study recommends that the New Minimum Wage legislation needs to ensure higher rates of compliance. The effective Minimum Wage should put measures in place to ensure that the compliance enforcement measures are practically implemented. A room still exists for both countries to mitigate wage inequalities that will benefit mostly the vulnerable employees. The study revealed that the NMW Commission needs to be capacitated with resources. A need of recruiting highly qualified inspectors was identified in order to strengthen the process of monitoring and ensuring compliance. The study further revealed that the appropriate Minimum Wage needs a collaborative participation of all stakeholders such as employers, the state, employees, trade unions, employer’s organization, bargaining councils, the member of public in order to achieve its professed mandate. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Tshete, Vusumzi Victor
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51183 , vital:43227
- Description: This comparative research study attempted to provide the comparative analysis between the Germany’s MiLoG and the South African NMWA. The study has adopted the ILO definition of the Minimum Wage as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by a collective agreement or an individual contract The Desk review was an appropriate data collection method for the present research studies. Desk research refers to secondary data that was collected without fieldwork. This included reviewal of libraries and the internet, that includes Journals; newspapers; clippings; reports; government statistics; dictionaries; books, On-line databases, Internet sources, legislations and case laws. The multiple research questions that will be addressed by the study question involve the regulation of the implementation of the NMW, the effectiveness and efficiency of the implementation of the NMW between South Africa and Germany, the impact of the NMW in addressing inequality, poverty and unemployment or socio-economic challenges, as well the overall role of the NMW in the entire labour between the two countries. The present study conducted a literature review on the historical development of the Minimum Wage in South Africa and Germany, the legislative framework around the Minimum Wage in both countries. The literature review also covered the impact of NMW on poverty alleviation and Wage inequalities. The literature further covered, the differences between the implementation of the MiLoG in the case of Germany and the NMWA in the case of South Africa. The literature also covered adjusting amendment and monitoring compliance including the best practices. The findings of the study is that the overarching purpose of introducing a NMW had multi- faceted purpose function such as of transforming the country’s inordinately unequal wage structure while at the same time redressing the inherent poverty, inequalities and transformation of the unequal wage structures both in South Africa and Germany. The Minimum Wage is implemented to prevent workers from earning very low wages. In both 3 countries the Minimum Wage is backed by the legislative framework. Processes to measure and enforce compliance are prevalent in both countries; however, the study found that it is very sophisticated to estimate the exact extent of non-compliance. The study further revealed that the effectiveness of Minimum Wages was seen to depend entirely on their policy design, implementation, and adoption as well as compliance measures. The success of the Minimum Wage solely depend on the compliance rate by employers, hence the study recommends that the New Minimum Wage legislation needs to ensure higher rates of compliance. The effective Minimum Wage should put measures in place to ensure that the compliance enforcement measures are practically implemented. A room still exists for both countries to mitigate wage inequalities that will benefit mostly the vulnerable employees. The study revealed that the NMW Commission needs to be capacitated with resources. A need of recruiting highly qualified inspectors was identified in order to strengthen the process of monitoring and ensuring compliance. The study further revealed that the appropriate Minimum Wage needs a collaborative participation of all stakeholders such as employers, the state, employees, trade unions, employer’s organization, bargaining councils, the member of public in order to achieve its professed mandate. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Presidential accountability for cabinet appointments in South Africa
- Authors: Phorego, Molefhi Solomon
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Executive power--South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/51212 , vital:43228
- Description: The President’s power to appoint cabinet members in South Africa constitutes an essential part of the country’s constitutional framework. It is a discretionary power exercised by the President in his capacity as Head of State bestowed on him by the Constitution, which underpins cabinet appointments.The underlying debates in relation to the President’s power to make cabinet appointments lie between justiciability and non-justiciability. In this respect, there are two schools of thought regarding the question whether the exercise of such a power may be the subject of a judicial inquiry, and if so, to what extent. This thesis provides insight into the nature and origin of the President’s power to appoint cabinet members. It also delves deeply into issues raised by the doctrine of separation of powers surrounding the exercise of this power. The core focus of the thesis is on the extent to which the President can be held accountable for making cabinet appointments. The main argument advanced is that because South Africa is a country founded on the principles of constitutional supremacy and the rule of law, every exercise of public power should be subject to the Constitution, including the President’s power to appoint cabinet members. The determination of whether public power is in line with the dictates of the Constitution calls for an independent judiciary, with the power to rule on any aspect of societal disputes. In pursuit of the above, the thesis analyses the constitutional provisions and case law relevant to the President’s powers as Head of State. The research highlights, amongst others, the President’s duty to give reasons for cabinet appointments. On this point it is submitted that the President does have the constitutional obligation to give reasons for cabinet appointments. Comparisons with other jurisdictions on cabinet appointment processes and oversight mechanisms regarding the exercise of that power form the backdrop against which recommendations are made in the thesis. Proposals are advanced for increased legislative oversight in cabinet appointments. Such oversight should focus on inter alia, the President’s duty to furnish reasons for cabinet appointments. The thesis also proposes a constitutional framework in terms of which Parliament plays a role in the selection of appointees to cabinet. The rationale behind this recommendation is the minimising of instances in which the judiciary is accused of overreaching on the powers of the political organs of government. The courts should, however, still retain the power to pronounce whether both the President and Parliament have fulfilled their relevant constitutional obligations in relation to the process of cabinet appointments. , Thesis (PhD) -- Faculty of Law, Public Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Phorego, Molefhi Solomon
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Executive power--South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/51212 , vital:43228
- Description: The President’s power to appoint cabinet members in South Africa constitutes an essential part of the country’s constitutional framework. It is a discretionary power exercised by the President in his capacity as Head of State bestowed on him by the Constitution, which underpins cabinet appointments.The underlying debates in relation to the President’s power to make cabinet appointments lie between justiciability and non-justiciability. In this respect, there are two schools of thought regarding the question whether the exercise of such a power may be the subject of a judicial inquiry, and if so, to what extent. This thesis provides insight into the nature and origin of the President’s power to appoint cabinet members. It also delves deeply into issues raised by the doctrine of separation of powers surrounding the exercise of this power. The core focus of the thesis is on the extent to which the President can be held accountable for making cabinet appointments. The main argument advanced is that because South Africa is a country founded on the principles of constitutional supremacy and the rule of law, every exercise of public power should be subject to the Constitution, including the President’s power to appoint cabinet members. The determination of whether public power is in line with the dictates of the Constitution calls for an independent judiciary, with the power to rule on any aspect of societal disputes. In pursuit of the above, the thesis analyses the constitutional provisions and case law relevant to the President’s powers as Head of State. The research highlights, amongst others, the President’s duty to give reasons for cabinet appointments. On this point it is submitted that the President does have the constitutional obligation to give reasons for cabinet appointments. Comparisons with other jurisdictions on cabinet appointment processes and oversight mechanisms regarding the exercise of that power form the backdrop against which recommendations are made in the thesis. Proposals are advanced for increased legislative oversight in cabinet appointments. Such oversight should focus on inter alia, the President’s duty to furnish reasons for cabinet appointments. The thesis also proposes a constitutional framework in terms of which Parliament plays a role in the selection of appointees to cabinet. The rationale behind this recommendation is the minimising of instances in which the judiciary is accused of overreaching on the powers of the political organs of government. The courts should, however, still retain the power to pronounce whether both the President and Parliament have fulfilled their relevant constitutional obligations in relation to the process of cabinet appointments. , Thesis (PhD) -- Faculty of Law, Public Law, 2021
- Full Text:
- Date Issued: 2021-04
Prospect of an adquisitorial criminal justice system
- Authors: Mpofu, Mputumi
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Bail--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51186 , vital:43231
- Description: Bail does not cease to be a mind boggling issue as it is challenging our courts on daily basis, hence the need for this research. The tendency of confusing on the role of presiding officers in our legal fraternity is so far as bail proceedings is concerned is growing by the day. The seems to be a tug of war between prosecutors and attorneys with regard to granting of bail for the arrested persons, which leads to judicial officers having to sit for bail applications. Some of these challenges are as a result of interpretation of legislation that governs the issue of bail which is primarily peremptory in nature. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mpofu, Mputumi
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Bail--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51186 , vital:43231
- Description: Bail does not cease to be a mind boggling issue as it is challenging our courts on daily basis, hence the need for this research. The tendency of confusing on the role of presiding officers in our legal fraternity is so far as bail proceedings is concerned is growing by the day. The seems to be a tug of war between prosecutors and attorneys with regard to granting of bail for the arrested persons, which leads to judicial officers having to sit for bail applications. Some of these challenges are as a result of interpretation of legislation that governs the issue of bail which is primarily peremptory in nature. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
Review of the rehabilitation and integration of offenders
- Authors: Darries, Share-Leigh
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Criminals--Rehabilitation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51199 , vital:43219
- Description: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones – and South Africa treated its imprisoned African citizens like animals”.1 The constitutional mandate to ensure the successful rehabilitation and reintegration of offenders into society, upon eventual release falls on the South African Department of Correctional Services (DCS).2 In terms of this mandate, the Department is encumbered with the responsibility to develop programmes which not only addresses criminal conduct but results in the eventual drop of recidivism rates.3 Notwithstanding the Department’s inordinate efforts to discharge its constitutional mandate, recidivism rates continue to be on the rise.4 Built to digress from innate retributive traditions and the concept of punishment, the Department of Correctional Services proffered to alter our realities through the creation of an environment which essentially births different behaviours.5 A task rendered unattainable, as inordinate efforts become frustrated by the realities of prisons and the myth of rehabilitation. Despite having one of the most progressive criminal justice systems in the world, obstinate challenges in South African prisons and an overwhelming prison population make managing and translating its policies into practice all the more difficult.6 With high crime and recidivism rates inundating an already saturated criminal justice 1 Mandela Long Walk to Freedom: The Autobiography of Nelson Mandela (1994) 174-175. 2 Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” 2019 12 African Journal of Criminology and Justice Studies 21 21. 3 Ibid. 4 Ibid. 5 Department of Correctional Services “White Paper on Corrections in South Africa” (November 2004) (Republic of South Africa, Minister of Correctional Services)” http://wwww.dcs.gov.za/wpcontent/uploads/2016/08/WHITE-PAPER-8.pdf (accessed 2019-05-6) 5; Wainio “Inside the World’s Toughest Prisons season 3 premiere recap: Costa Rica: Prison on a Knife-Edge” https://www.google.co.za/amp/s/showsnob.com/2018/12/24/inside-the-worlds-toughest-prisonsseason-3-premiere/amp (accessed 2019-05-6). 6 McAree “Prisoner Rehabilitation in South Africa: A case study of Phoenix Zululand’s work in Eshowe Correctional Facilities” 2011 School for International Training 7. ix system, and exposure of minor offenders to hardened criminals become all the more common,7 the vision of translating every offender who walks through the prison gate into corrigible and law-abiding citizens8 become a far-kept dream. Instead, South African prisons become nothing but breeding grounds of criminality, 9 and temporary vessels of human right violations, as an inmates try to come to terms with the fact that their eventual release into society is met with ostracization, destabilized community relations and collateral consequences.10 Since offenders are usually detained for long periods on remand, prisons are innately prevented from becoming correctional centers despite this being a stated aim in the White Paper on Corrections.11 Against this backdrop, the researcher proffers to broaden the perpetual desire to construct a transformed and developed system; one which charts a course from innate retributive traditions to one which births rehabilitated offenders into society. Mindful of the obstinate penal system which undeniably perpetuates colonial structures through dichotomization, this treatise offers an altered reality, a system which respects and promotes the values and rights enshrined in the Constitution of the Republic of South Africa.12 , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Darries, Share-Leigh
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Criminals--Rehabilitation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51199 , vital:43219
- Description: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones – and South Africa treated its imprisoned African citizens like animals”.1 The constitutional mandate to ensure the successful rehabilitation and reintegration of offenders into society, upon eventual release falls on the South African Department of Correctional Services (DCS).2 In terms of this mandate, the Department is encumbered with the responsibility to develop programmes which not only addresses criminal conduct but results in the eventual drop of recidivism rates.3 Notwithstanding the Department’s inordinate efforts to discharge its constitutional mandate, recidivism rates continue to be on the rise.4 Built to digress from innate retributive traditions and the concept of punishment, the Department of Correctional Services proffered to alter our realities through the creation of an environment which essentially births different behaviours.5 A task rendered unattainable, as inordinate efforts become frustrated by the realities of prisons and the myth of rehabilitation. Despite having one of the most progressive criminal justice systems in the world, obstinate challenges in South African prisons and an overwhelming prison population make managing and translating its policies into practice all the more difficult.6 With high crime and recidivism rates inundating an already saturated criminal justice 1 Mandela Long Walk to Freedom: The Autobiography of Nelson Mandela (1994) 174-175. 2 Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” 2019 12 African Journal of Criminology and Justice Studies 21 21. 3 Ibid. 4 Ibid. 5 Department of Correctional Services “White Paper on Corrections in South Africa” (November 2004) (Republic of South Africa, Minister of Correctional Services)” http://wwww.dcs.gov.za/wpcontent/uploads/2016/08/WHITE-PAPER-8.pdf (accessed 2019-05-6) 5; Wainio “Inside the World’s Toughest Prisons season 3 premiere recap: Costa Rica: Prison on a Knife-Edge” https://www.google.co.za/amp/s/showsnob.com/2018/12/24/inside-the-worlds-toughest-prisonsseason-3-premiere/amp (accessed 2019-05-6). 6 McAree “Prisoner Rehabilitation in South Africa: A case study of Phoenix Zululand’s work in Eshowe Correctional Facilities” 2011 School for International Training 7. ix system, and exposure of minor offenders to hardened criminals become all the more common,7 the vision of translating every offender who walks through the prison gate into corrigible and law-abiding citizens8 become a far-kept dream. Instead, South African prisons become nothing but breeding grounds of criminality, 9 and temporary vessels of human right violations, as an inmates try to come to terms with the fact that their eventual release into society is met with ostracization, destabilized community relations and collateral consequences.10 Since offenders are usually detained for long periods on remand, prisons are innately prevented from becoming correctional centers despite this being a stated aim in the White Paper on Corrections.11 Against this backdrop, the researcher proffers to broaden the perpetual desire to construct a transformed and developed system; one which charts a course from innate retributive traditions to one which births rehabilitated offenders into society. Mindful of the obstinate penal system which undeniably perpetuates colonial structures through dichotomization, this treatise offers an altered reality, a system which respects and promotes the values and rights enshrined in the Constitution of the Republic of South Africa.12 , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The application of the doctrine of common purpose to the joint possession of firearms
- Authors: Mnono, Zimbini
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51197 , vital:43225
- Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mnono, Zimbini
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51197 , vital:43225
- Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The application of the prevention and combating of corrupt activities act
- Authors: Landman, Johan Abraham
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Corrupt practices--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51201 , vital:43223
- Description: The study will address the application of the Prevention and Combatting of Corrupt Activities Act (PCCAA) and the various offences that is created by PCCAA and how the coutls apply PCCAA in corruption cases. This study will compare the crimes that was created under the repealed Corruption Act with the crimes created under PCCAA, lt will further show how the courls interpreted the application of PCCAA. The infamous case of former police commissioner, Jacki Selebi will be discussed and how the Supreme coutl of Appeal applied section 4 of PCCAA. lt will furlher explore why section 5 of PCCAA needs amendment to be able to prosecute foreign public officials under PCCAA. The PCCAA Amendment Bill is currently before parliament to amend section 5 of PCCAA. This study will further explore how corruption is dealt considering hospitality and gifts. This must be the most unnoticed form of bribery that occurs which PCCAA does not specifically clearly addresses. This will shorlly be compared to the German Penal Code. All legislation has strengths and weaknesses, including PCCAA. This study will explore those strengths and weaknesses and how they can be solved. lt will explore loopholes within PCCAA and the strategy of 'unbundling' corruption and its effects. lt has been stressed by the courts that corruption is a very serious crime and therefore the reporting thereof is impoftant. This study will discuss the reporling of corruption in terms of section 34 of PCCAA. This study will fufther show through South African case law that the courls are too lenient when sentencing individuals guilty of corruption and that the minimum sentence needs to be the starting point for sentencing offenders. The courts should not have discretion to deviate from this minimum sentence given how serious the courls express corruption to be and the devastating effects it has. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Landman, Johan Abraham
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Corrupt practices--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51201 , vital:43223
- Description: The study will address the application of the Prevention and Combatting of Corrupt Activities Act (PCCAA) and the various offences that is created by PCCAA and how the coutls apply PCCAA in corruption cases. This study will compare the crimes that was created under the repealed Corruption Act with the crimes created under PCCAA, lt will further show how the courls interpreted the application of PCCAA. The infamous case of former police commissioner, Jacki Selebi will be discussed and how the Supreme coutl of Appeal applied section 4 of PCCAA. lt will furlher explore why section 5 of PCCAA needs amendment to be able to prosecute foreign public officials under PCCAA. The PCCAA Amendment Bill is currently before parliament to amend section 5 of PCCAA. This study will further explore how corruption is dealt considering hospitality and gifts. This must be the most unnoticed form of bribery that occurs which PCCAA does not specifically clearly addresses. This will shorlly be compared to the German Penal Code. All legislation has strengths and weaknesses, including PCCAA. This study will explore those strengths and weaknesses and how they can be solved. lt will explore loopholes within PCCAA and the strategy of 'unbundling' corruption and its effects. lt has been stressed by the courts that corruption is a very serious crime and therefore the reporting thereof is impoftant. This study will discuss the reporling of corruption in terms of section 34 of PCCAA. This study will fufther show through South African case law that the courls are too lenient when sentencing individuals guilty of corruption and that the minimum sentence needs to be the starting point for sentencing offenders. The courts should not have discretion to deviate from this minimum sentence given how serious the courls express corruption to be and the devastating effects it has. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The concurrent jurisdiction of the high court and labour court
- Authors: Beyleveld, Dominique
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Labor laws and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51191 , vital:43218
- Description: The words “concurrent jurisdiction” essentially means that there is more than one court which has the power to hear a matter and therefore, a party may choose which forum to approach.1 The High Court (hereinafter referred to as “HC”) may exercise jurisdiction, together with the Labour Court (hereinafter referred to as “LC”), in enforcing purely contractual and other common law claims as well as for breach of fundamental rights to which the Labour Relations Act (LRA)2 (or other labour statutes) do not give effect to.3 However, this is not without limitations. The HC and the LC have concurrent jurisdiction over claims relating to the lawfulness of dismissal or other conduct by the parties, whereas all claims based on fairness falls within the exclusive jurisdiction of the LC.4 The practical implication of the approach taken by the Constitutional Court (hereinafter referred to as “CC”)5 is that jurisdiction may, to a certain extent,6 be based on the pleadings, and a litigant may in fact have simultaneous claims arising from the same circumstances.7 However, where the basis of the action and the relief sought is clearly identifiable as being part of the machinery of the Labour Relations Act (hereinafter referred to as the “LRA”) or other labour legislation, then the HC will not have jurisdiction and it is up to the LC to remedy the wrong and give effect to the primary objects of the LRA , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Beyleveld, Dominique
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Labor laws and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51191 , vital:43218
- Description: The words “concurrent jurisdiction” essentially means that there is more than one court which has the power to hear a matter and therefore, a party may choose which forum to approach.1 The High Court (hereinafter referred to as “HC”) may exercise jurisdiction, together with the Labour Court (hereinafter referred to as “LC”), in enforcing purely contractual and other common law claims as well as for breach of fundamental rights to which the Labour Relations Act (LRA)2 (or other labour statutes) do not give effect to.3 However, this is not without limitations. The HC and the LC have concurrent jurisdiction over claims relating to the lawfulness of dismissal or other conduct by the parties, whereas all claims based on fairness falls within the exclusive jurisdiction of the LC.4 The practical implication of the approach taken by the Constitutional Court (hereinafter referred to as “CC”)5 is that jurisdiction may, to a certain extent,6 be based on the pleadings, and a litigant may in fact have simultaneous claims arising from the same circumstances.7 However, where the basis of the action and the relief sought is clearly identifiable as being part of the machinery of the Labour Relations Act (hereinafter referred to as the “LRA”) or other labour legislation, then the HC will not have jurisdiction and it is up to the LC to remedy the wrong and give effect to the primary objects of the LRA , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The dismissal of employees for a group or team misconduct
- Authors: Mnisi, Daphney Sibongile
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51184 , vital:43226
- Description: South African labour law is founded on the fundamental constitutional right of fair “labour practices”. This fundamental right is afforded to both the employer and workers. This means that in the employment relationship, there are two competing rights involved which necessitate the need to strike a balance when each party’s rights are exercised. Therefore, this right is not absolute, and it is subject to limitations as per the provisions of section 36 of the Constitution. The Labour Relations Act, amongst other labour law resources considered in this research, give effect to those competing rights and seek to strike the necessary balance by establishing guidelines to protect the individual employee against unfair dismissals, amongst other things. It requires that the dismissal of an employee be fair. This requirement is met where two elements are fulfilled: (1) substantive fairness and (2) procedural fairness. The purpose of this study is to focus on “misconduct” as a valid reason for dismissal, as well as “group or team misconduct” which is included in the notion and ambit of “misconduct”. This type of misconduct involves a group or team who the employer has identified as having committed a misconduct, but the employer, due to different reasons explored in this research, is unable to identify the specific individual employees directly involved in the primary misconduct it wishes to prosecute. Therefore, the employer formulates a disciplinary charge of “group or team misconduct” to discipline the entire group or team. This group or team may form part of the entire workforce or a team within a department of the employer’s business. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mnisi, Daphney Sibongile
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51184 , vital:43226
- Description: South African labour law is founded on the fundamental constitutional right of fair “labour practices”. This fundamental right is afforded to both the employer and workers. This means that in the employment relationship, there are two competing rights involved which necessitate the need to strike a balance when each party’s rights are exercised. Therefore, this right is not absolute, and it is subject to limitations as per the provisions of section 36 of the Constitution. The Labour Relations Act, amongst other labour law resources considered in this research, give effect to those competing rights and seek to strike the necessary balance by establishing guidelines to protect the individual employee against unfair dismissals, amongst other things. It requires that the dismissal of an employee be fair. This requirement is met where two elements are fulfilled: (1) substantive fairness and (2) procedural fairness. The purpose of this study is to focus on “misconduct” as a valid reason for dismissal, as well as “group or team misconduct” which is included in the notion and ambit of “misconduct”. This type of misconduct involves a group or team who the employer has identified as having committed a misconduct, but the employer, due to different reasons explored in this research, is unable to identify the specific individual employees directly involved in the primary misconduct it wishes to prosecute. Therefore, the employer formulates a disciplinary charge of “group or team misconduct” to discipline the entire group or team. This group or team may form part of the entire workforce or a team within a department of the employer’s business. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The impact of the minimum wage in South Africa
- Authors: Brown, Kenrick
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51202 , vital:43224
- Description: On the 20th anniversary of freedom and democracy in South Africa, the government announced its intention to introduce a national minimum wage. The announcement made it clear that the intention was not to introduce a residual wage floor, but to rather completely transform the country’s inordinately unequal wage structure. “Change will not come about without some far-reaching interventions. … As government, we will, during this term, investigate the possibility of a national minimum wage as one of the key mechanisms to reduce income inequality.”1 Minimum wages are geared towards establishing wage floors, which are the bare minimum that employees are allowed to pay employees. The International Labour Organisation (ILO) describes minimum wages as remuneration that covers the basic needs of workers and their families, taking into account relevant economic factors.2 National minimum wages of course set these minimum wage floors at a national, economy-wide level. In South Africa, the stated purpose of a national minimum wage has the multi-purpose function of setting a national wage floor in order to reduce poverty and inequality in order to transform the inherently unequal wage structure radically that still exists in South Africa post-apartheid. Before 1st of January 2019 when the national minimum wage became effective, South Africa had minimum wages, but this was prescribed per sector of the economy. Particularly in unorganised sectors a nationally set minimum wage increased the scope and ease of enforcement for minimum wages in comparison to sectoral wage determinations. In short, it covers all employees in all industries, whereas sectoral determinations did not. Furthermore, a national minimum wage would be far more easily set to take into consideration broader governmental policy considerations in comparison to diverse, multisector wage determinations that only target the employees and economic considerations of their sector. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Brown, Kenrick
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51202 , vital:43224
- Description: On the 20th anniversary of freedom and democracy in South Africa, the government announced its intention to introduce a national minimum wage. The announcement made it clear that the intention was not to introduce a residual wage floor, but to rather completely transform the country’s inordinately unequal wage structure. “Change will not come about without some far-reaching interventions. … As government, we will, during this term, investigate the possibility of a national minimum wage as one of the key mechanisms to reduce income inequality.”1 Minimum wages are geared towards establishing wage floors, which are the bare minimum that employees are allowed to pay employees. The International Labour Organisation (ILO) describes minimum wages as remuneration that covers the basic needs of workers and their families, taking into account relevant economic factors.2 National minimum wages of course set these minimum wage floors at a national, economy-wide level. In South Africa, the stated purpose of a national minimum wage has the multi-purpose function of setting a national wage floor in order to reduce poverty and inequality in order to transform the inherently unequal wage structure radically that still exists in South Africa post-apartheid. Before 1st of January 2019 when the national minimum wage became effective, South Africa had minimum wages, but this was prescribed per sector of the economy. Particularly in unorganised sectors a nationally set minimum wage increased the scope and ease of enforcement for minimum wages in comparison to sectoral wage determinations. In short, it covers all employees in all industries, whereas sectoral determinations did not. Furthermore, a national minimum wage would be far more easily set to take into consideration broader governmental policy considerations in comparison to diverse, multisector wage determinations that only target the employees and economic considerations of their sector. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The protection of children during assert forfeiture procedure
- Authors: Khunou, Lesego
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Children's rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51207 , vital:43221
- Description: As South Africa was transitioning into a new democracy there was an upsurge of organised crimes in the country. In the pursuit of tackling the rise of organised crimes in South Africa which would destabilise the country's economy, the Prevention of Organised Crimes Act was introduced however the act was not only for organised crime, it was for crimes such as money laundering, racketeering and gang activities amongst other crimes. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Khunou, Lesego
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Children's rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51207 , vital:43221
- Description: As South Africa was transitioning into a new democracy there was an upsurge of organised crimes in the country. In the pursuit of tackling the rise of organised crimes in South Africa which would destabilise the country's economy, the Prevention of Organised Crimes Act was introduced however the act was not only for organised crime, it was for crimes such as money laundering, racketeering and gang activities amongst other crimes. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The regulation of renewable ocean energy
- Authors: Kekana, Lerato Caroline
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Renewable energy sources -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51211 , vital:43217
- Description: Energy is one of the vital natural resources that contribute towards an improvement in social and economic development. Environmental issues such as climate change have resulted in the exploitation of renewable energy gaining momentum. Renewable ocean energy is one of the renewable sources that have the potential to assist South Africa to achieve its energy policy goals, which include economic development and the management of energy-related environmental and health impacts. The exploitation and exploration of renewable ocean energy in South Africa raise legal concerns. These concerns are the lack of appropriate legal and regulatory frameworks and the possible conflicts among users in the marine environment that may occur as a result of the exploitation and exploration of renewable ocean energy. This dissertation, therefore, addresses these concerns by providing a critical assessment of the regulation of renewable ocean energy in South Africa. Firstly, it provides an introduction and legal background of renewable ocean energy. It proceeds by critically assessing the international requirements with which South Africa needs to comply regarding renewable ocean energy. Following that, the dissertation provides an analysis of the environment and energy legislation and the extent to which they regulate renewable ocean energy. Lastly, taking into account other existing and future activities in the marine environment, there is a discussion of the marine spatial planning (MSP) and other regulatory measures in so far as they relate to the resolution of the conflict in the context of renewable ocean energy. The conclusion is that the existing legislation does not appropriately regulate renewable ocean energy. As a result, the dissertation proposes how the existing legislation may adequately include renewable ocean energy. Furthermore, it makes recommendations. , Thesis (LLM) -- Faculty of Law, Public Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Kekana, Lerato Caroline
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Renewable energy sources -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51211 , vital:43217
- Description: Energy is one of the vital natural resources that contribute towards an improvement in social and economic development. Environmental issues such as climate change have resulted in the exploitation of renewable energy gaining momentum. Renewable ocean energy is one of the renewable sources that have the potential to assist South Africa to achieve its energy policy goals, which include economic development and the management of energy-related environmental and health impacts. The exploitation and exploration of renewable ocean energy in South Africa raise legal concerns. These concerns are the lack of appropriate legal and regulatory frameworks and the possible conflicts among users in the marine environment that may occur as a result of the exploitation and exploration of renewable ocean energy. This dissertation, therefore, addresses these concerns by providing a critical assessment of the regulation of renewable ocean energy in South Africa. Firstly, it provides an introduction and legal background of renewable ocean energy. It proceeds by critically assessing the international requirements with which South Africa needs to comply regarding renewable ocean energy. Following that, the dissertation provides an analysis of the environment and energy legislation and the extent to which they regulate renewable ocean energy. Lastly, taking into account other existing and future activities in the marine environment, there is a discussion of the marine spatial planning (MSP) and other regulatory measures in so far as they relate to the resolution of the conflict in the context of renewable ocean energy. The conclusion is that the existing legislation does not appropriately regulate renewable ocean energy. As a result, the dissertation proposes how the existing legislation may adequately include renewable ocean energy. Furthermore, it makes recommendations. , Thesis (LLM) -- Faculty of Law, Public Law, 2021
- Full Text: false
- Date Issued: 2021-04
The rights of children in youth care centres
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The substantive fairness of dismissal for operational requirements in the context of collective bargaining
- Authors: Mtshemla, Ntokozo
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51195 , vital:43222
- Description: An employer may wish to change terms and conditions of employment in order to respond to the operational needs of a business. The definition of operational requirements is not limited to initiatives aimed at ensuring the survival of a business but include measures intended to improve its performance. Changes to terms and conditions of employment ordinarily locate themselves within the realm of interest disputes which are mainly resolved through the process of collective bargaining coupled with power play. This means that an employer may not dismiss employees within the context of collective bargaining as a way of compelling compliance with a demand in relation to matters of mutual interest. Section187(1)(c) of the LRA renders any dismissal automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest. The question that arises relates to the interpretation of this section and the impact thereof on the right of the employer to retrench as envisaged in section 188(1)(a)(ii) of the LRA. This reveals the intersection between collective bargaining and dismissals for operational requirements. In other words, changes to terms and conditions of employment equally influence the performance of the business thereby also fall within the definition of operational requirements. The question therefore is when do employers’ economic needs justify a dismissal of employees who rejects changes to terms and conditions of employment? Secondly, whether or not the relevant provisions, and the whole scheme of the LRA, require retrenchments to be the measure of last resort? These issues shall be explored in this treatise with reference to the relevant provisions of the LRA and relevant case law. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mtshemla, Ntokozo
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51195 , vital:43222
- Description: An employer may wish to change terms and conditions of employment in order to respond to the operational needs of a business. The definition of operational requirements is not limited to initiatives aimed at ensuring the survival of a business but include measures intended to improve its performance. Changes to terms and conditions of employment ordinarily locate themselves within the realm of interest disputes which are mainly resolved through the process of collective bargaining coupled with power play. This means that an employer may not dismiss employees within the context of collective bargaining as a way of compelling compliance with a demand in relation to matters of mutual interest. Section187(1)(c) of the LRA renders any dismissal automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest. The question that arises relates to the interpretation of this section and the impact thereof on the right of the employer to retrench as envisaged in section 188(1)(a)(ii) of the LRA. This reveals the intersection between collective bargaining and dismissals for operational requirements. In other words, changes to terms and conditions of employment equally influence the performance of the business thereby also fall within the definition of operational requirements. The question therefore is when do employers’ economic needs justify a dismissal of employees who rejects changes to terms and conditions of employment? Secondly, whether or not the relevant provisions, and the whole scheme of the LRA, require retrenchments to be the measure of last resort? These issues shall be explored in this treatise with reference to the relevant provisions of the LRA and relevant case law. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Workplace forums and the enhancement of collective bargaining
- Authors: Silo, Zama
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51189 , vital:43229
- Description: Historically, workers in South Africa, black and Africans in particular, fought against an oppressive regime and, in the absence of political rights, strikes were mostly violent. Labour legislation was based on racial categorisation and discrimination. There was parallel labour legislation for blacks, and a different one for whites. The legislation for blacks was called the Black Labour Relations Act 48 of 19531 , for whites it was called the Industrial Conciliation Act, it was later renamed the Labour Relations Act 28 of 19562 . Trade unions were racially divided, and black workers mostly were denied the right of joining trade unions. The unions that admitted blacks as members could not become parties to industrial councils. Before 1979, black workers in South Africa did not have access to the collective bargaining system. After that year, the guidelines proposed by the Wiehahn, Commission brought about certain changes. Attempts were made to establish independent labour organisations for black workers, but both the state and employers applied various strategies to undermine these organisations. One of these strategies was the Native Labour Settlement Disputes Act of 1953, which restricted the representation of black workers on worker committees in the workplace and prohibited them from striking. Black workers therefore never utilised these statutory works committees and by 1971, there were only 18 statutory works committees in the country. The Department of Labour indicated that there was a preference for non-statutory works committees because there were no restrictions in respect of their composition, and they provided a structure by means of which workers could be represented.3 Militant action by black labour in the early 1970s led to the promulgation of the Black Labour Relations Regulation Act of 1973.4 This Act was to extend the existing works committee system. Liaison and coordinating committees were set up to restrain activism among the workers and establish an alternative form for trade unions of labour management communication. Where statutory works committees had only consisted of employees, employers could now half the members of the new liaison committees and their chairman. The growth of these committees led to black workers building up a base for a future independent organisation. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Silo, Zama
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51189 , vital:43229
- Description: Historically, workers in South Africa, black and Africans in particular, fought against an oppressive regime and, in the absence of political rights, strikes were mostly violent. Labour legislation was based on racial categorisation and discrimination. There was parallel labour legislation for blacks, and a different one for whites. The legislation for blacks was called the Black Labour Relations Act 48 of 19531 , for whites it was called the Industrial Conciliation Act, it was later renamed the Labour Relations Act 28 of 19562 . Trade unions were racially divided, and black workers mostly were denied the right of joining trade unions. The unions that admitted blacks as members could not become parties to industrial councils. Before 1979, black workers in South Africa did not have access to the collective bargaining system. After that year, the guidelines proposed by the Wiehahn, Commission brought about certain changes. Attempts were made to establish independent labour organisations for black workers, but both the state and employers applied various strategies to undermine these organisations. One of these strategies was the Native Labour Settlement Disputes Act of 1953, which restricted the representation of black workers on worker committees in the workplace and prohibited them from striking. Black workers therefore never utilised these statutory works committees and by 1971, there were only 18 statutory works committees in the country. The Department of Labour indicated that there was a preference for non-statutory works committees because there were no restrictions in respect of their composition, and they provided a structure by means of which workers could be represented.3 Militant action by black labour in the early 1970s led to the promulgation of the Black Labour Relations Regulation Act of 1973.4 This Act was to extend the existing works committee system. Liaison and coordinating committees were set up to restrain activism among the workers and establish an alternative form for trade unions of labour management communication. Where statutory works committees had only consisted of employees, employers could now half the members of the new liaison committees and their chairman. The growth of these committees led to black workers building up a base for a future independent organisation. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- «
- ‹
- 1
- ›
- »