Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
The legality of euthanasia conducted by medical practitioners
- Authors: Davids, Sesam Isipho
- Date: 2024-12
- Subjects: Euthanasia -- Law and legislation , Assisted suicide -- Law and legislation , Euthanasia -- Moral and ethical aspects
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68681 , vital:77081
- Description: Euthanasia remains a contentious subject of debate in countries around the world and in South Africa. The South African court system has been faced with requests for the decriminalisation of euthanasia. However, it remains illegal to practice euthanasia in South Africa. This is set by common law as there is no legislation formally regulating euthanasia. Euthanasia provides relief from suffering for patients with terminal illnesses that cause severe suffering and a decrease in their quality of life. Individual autonomy is recognised as patients are given the ability to choose how to end their lives once they make the decision to terminate their lives. In this study, an examination on physician-assisted euthanasia and its current legal position in South Africa will be conducted. Key terms are defined, such as euthanasia - distinguishing active and passive euthanasia as well as physician-assisted suicide. South African law permits the withdrawal of life-sustaining treatments which may be viewed as passive euthanasia. This is done with the consent of the patient and the medical practitioners involved are not held criminally liable should the withholding of treatment cause the death of the patient. Relevant constitutional rights will be examined to make a case for the legalisation of physician-assisted euthanasia. These rights include the right to dignity, the right to life, the right to equality, the right to freedom of religion, belief and opinion, and the limitation clause. Common law, case law and statutory law will also be considered. The recommendations of the South African Law Commission in its report (project 86) will be examined as well. An analysis will be conducted on how foreign jurisdictions have accepted physician-assisted euthanasia and implemented legislative measures to safeguard and regulate how medical practitioners practice it. Canada is an example of such a jurisdiction and an analysis has been conducted on how courts in Canada have made a case for the decriminalisation of physician-assisted euthanasia. Canadian courts relied on rights such as the right to life and freedom of opinion. viii When arguing for or against the legalisation of euthanasia, the ethical perspectives of both arguments must be considered. The ‘slippery slope’ will be discussed to demonstrate an ethical argument against euthanasia. The ethical framework of utilitarianism will be discussed as an argument for euthanasia. In line with the title of this research, the physician’s role in the process of euthanasia will also be discussed. After weighing the key arguments, this research concludes that physician-assisted euthanasia ought to be legalised in South Africa. Recommendations are further suggested on how euthanasia ought to be regulated should it be legalised. The recommendations serve as a means of addressing the possibility of abuse and illegal conduct from medical practitioners and the public. Through this study, the aim is to contribute to the debate on physician-assisted euthanasia and to advance the development of a euthanasia-related legislation in South Africa. , Thesis (LLM) -- Faculty of Law, School of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: Davids, Sesam Isipho
- Date: 2024-12
- Subjects: Euthanasia -- Law and legislation , Assisted suicide -- Law and legislation , Euthanasia -- Moral and ethical aspects
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68681 , vital:77081
- Description: Euthanasia remains a contentious subject of debate in countries around the world and in South Africa. The South African court system has been faced with requests for the decriminalisation of euthanasia. However, it remains illegal to practice euthanasia in South Africa. This is set by common law as there is no legislation formally regulating euthanasia. Euthanasia provides relief from suffering for patients with terminal illnesses that cause severe suffering and a decrease in their quality of life. Individual autonomy is recognised as patients are given the ability to choose how to end their lives once they make the decision to terminate their lives. In this study, an examination on physician-assisted euthanasia and its current legal position in South Africa will be conducted. Key terms are defined, such as euthanasia - distinguishing active and passive euthanasia as well as physician-assisted suicide. South African law permits the withdrawal of life-sustaining treatments which may be viewed as passive euthanasia. This is done with the consent of the patient and the medical practitioners involved are not held criminally liable should the withholding of treatment cause the death of the patient. Relevant constitutional rights will be examined to make a case for the legalisation of physician-assisted euthanasia. These rights include the right to dignity, the right to life, the right to equality, the right to freedom of religion, belief and opinion, and the limitation clause. Common law, case law and statutory law will also be considered. The recommendations of the South African Law Commission in its report (project 86) will be examined as well. An analysis will be conducted on how foreign jurisdictions have accepted physician-assisted euthanasia and implemented legislative measures to safeguard and regulate how medical practitioners practice it. Canada is an example of such a jurisdiction and an analysis has been conducted on how courts in Canada have made a case for the decriminalisation of physician-assisted euthanasia. Canadian courts relied on rights such as the right to life and freedom of opinion. viii When arguing for or against the legalisation of euthanasia, the ethical perspectives of both arguments must be considered. The ‘slippery slope’ will be discussed to demonstrate an ethical argument against euthanasia. The ethical framework of utilitarianism will be discussed as an argument for euthanasia. In line with the title of this research, the physician’s role in the process of euthanasia will also be discussed. After weighing the key arguments, this research concludes that physician-assisted euthanasia ought to be legalised in South Africa. Recommendations are further suggested on how euthanasia ought to be regulated should it be legalised. The recommendations serve as a means of addressing the possibility of abuse and illegal conduct from medical practitioners and the public. Through this study, the aim is to contribute to the debate on physician-assisted euthanasia and to advance the development of a euthanasia-related legislation in South Africa. , Thesis (LLM) -- Faculty of Law, School of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-12
The review of a disciplinary finding or sanction in terms of section 158(1)(h) of the labour relations act 66 of 1995
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Balancing an educator’s right to strike and a child’s right to basic education.
- Authors: Maluleke, Mongwena John
- Date: 2024-04
- Subjects: Educational law and legislation , Children's right to education , Basic education
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66128 , vital:74400
- Description: This thesis examines how a fair balance can be realised between the educator’s right to strike and the child’s right to education. International and constitutional frameworks are analysed to uncover South Africa’s position on the two opposing rights and the various balancing approaches available. The study recommends a consensus-based approach to balance the rights of educators with that of the child’s right to education. It further proposes the establishment of a structured and organised forum or institution with the sole purpose of dealing with the rights of educators that compete with the rights of learners. , Thesis (LLD) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Maluleke, Mongwena John
- Date: 2024-04
- Subjects: Educational law and legislation , Children's right to education , Basic education
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/66128 , vital:74400
- Description: This thesis examines how a fair balance can be realised between the educator’s right to strike and the child’s right to education. International and constitutional frameworks are analysed to uncover South Africa’s position on the two opposing rights and the various balancing approaches available. The study recommends a consensus-based approach to balance the rights of educators with that of the child’s right to education. It further proposes the establishment of a structured and organised forum or institution with the sole purpose of dealing with the rights of educators that compete with the rights of learners. , Thesis (LLD) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
Collective bargaining challenges in the public service sector
- Authors: Maleka, Reuben Mpono
- Date: 2024-04
- Subjects: Collective bargaining -- South Africa , Collective labor agreements -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66283 , vital:74474
- Description: The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement,1 but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”.2 The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining3 between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest.4 In practice, collective bargaining involves demand and concession between parties up until a compromise can be found.5 Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise.6 Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making.7 The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place , Thesis (LLM) -- Faculty of Law, Department of Mercantile Law, 2024 , The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement, but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”. The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest. In practice, collective bargaining involves demand and concession between parties up until a compromise can be found. Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise. Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making. The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place
- Full Text:
- Date Issued: 2024-04
- Authors: Maleka, Reuben Mpono
- Date: 2024-04
- Subjects: Collective bargaining -- South Africa , Collective labor agreements -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66283 , vital:74474
- Description: The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement,1 but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”.2 The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining3 between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest.4 In practice, collective bargaining involves demand and concession between parties up until a compromise can be found.5 Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise.6 Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making.7 The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place , Thesis (LLM) -- Faculty of Law, Department of Mercantile Law, 2024 , The concept of collective bargaining is a very old employment relations concept that has evolved and developed over the years. The concept originated in the British trade union and other related labour movement, but it was Samuel Gompers, an American labour leader, who developed its common use in his country. Over the years the use and development of collective bargaining has spread over the world and therefore “collective bargaining has a long history, evidenced by developments in different countries, as well as by the importance it has played in granting workers a greater voice in organizations”. The Labour Relations Act, 66 of 1995 (“LRA”) was enacted with the view to facilitate collective bargaining between employers, employers' organizations, trade unions, and employees in order to set working conditions, develop industrial policy, and deal with other issues that are of common interest. In practice, collective bargaining involves demand and concession between parties up until a compromise can be found. Hence, collective bargaining may not be reduced to mere consultations, as it requires each party to not simply attend to and consider the representations of the other, but also sacrifice fixed positions whenever possible in order to reach a compromise. Notably, traditional collective bargaining is a mechanism to negotiate the terms and conditions of employment and is not a vehicle to facilitate joint decision making. The greatest net benefit from collective bargaining can be obtained when a system that promotes good faith bargaining and the efficient enforcement of collective agreements is in place
- Full Text:
- Date Issued: 2024-04
Defining and regulating de facto and shadow directors: lessons from New Zealand
- Authors: Botha, Bernardus Hermanus
- Date: 2024-04
- Subjects: Business law , Companies Act 71 of 2008. , Company Management
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63059 , vital:73182
- Description: The term ‘director’ is commonly limited to those persons who have been validly appointed as directors. These directors are referred to as de jure directors. However, this is not the only type of director found in practical corporate settings. There are also those who have not been validly appointed as a director, who nonetheless act as directors and who are held out by companies as such. These persons are known as de facto directors. An individual who has not been validly appointed as a director, who is not held out by a company as such, but who still exercises some measure of control over the affairs of a company, is known as a shadow director. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen fit to regulate de facto and shadow directors and has done so for over 70 years. Owing to the ambiguous wording of the definition of ‘director’ contained in the Companies Act, there is uncertainty whether the current definition in the Companies Act 71 of 2008 extends to de facto and shadow directors. This uncertainty resulted in the non-regulation of these forms of directorship. The Act only applies to those individuals who fall within the definition of ‘director’. The practical effect of this is the absence of clear avenues of accountability to those who occupy a position of power within a company without being appointed as a de jure director. Considering this, the core objectives of this research are to illustrate the far-reaching consequences of the non-regulation of de facto and shadow directors and how this problem may be remedied. , Thesis (LLM) -- Faculty of Law
- Full Text:
- Date Issued: 2024-04
- Authors: Botha, Bernardus Hermanus
- Date: 2024-04
- Subjects: Business law , Companies Act 71 of 2008. , Company Management
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63059 , vital:73182
- Description: The term ‘director’ is commonly limited to those persons who have been validly appointed as directors. These directors are referred to as de jure directors. However, this is not the only type of director found in practical corporate settings. There are also those who have not been validly appointed as a director, who nonetheless act as directors and who are held out by companies as such. These persons are known as de facto directors. An individual who has not been validly appointed as a director, who is not held out by a company as such, but who still exercises some measure of control over the affairs of a company, is known as a shadow director. The existence of de facto and shadow directors is not peculiar to South Africa. New Zealand has seen fit to regulate de facto and shadow directors and has done so for over 70 years. Owing to the ambiguous wording of the definition of ‘director’ contained in the Companies Act, there is uncertainty whether the current definition in the Companies Act 71 of 2008 extends to de facto and shadow directors. This uncertainty resulted in the non-regulation of these forms of directorship. The Act only applies to those individuals who fall within the definition of ‘director’. The practical effect of this is the absence of clear avenues of accountability to those who occupy a position of power within a company without being appointed as a de jure director. Considering this, the core objectives of this research are to illustrate the far-reaching consequences of the non-regulation of de facto and shadow directors and how this problem may be remedied. , Thesis (LLM) -- Faculty of Law
- Full Text:
- Date Issued: 2024-04
Discipline and dismissal of employees For testing positive for cannabis
- Authors: Syce, Donato Burchelle
- Date: 2024-04
- Subjects: Occupational health , Cannabis , Substance use
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63071 , vital:73184
- Description: Employers are legally obligated to provide a safe working environment for all employees. They are permitted to enforce rules that regulate the use of cannabis, including a total prohibition thereof in the workplace. Most employers adopt a policy with a zero-tolerance approach to substance abuse in the workplace, especially considering the negative effects of substances. Cannabis is regarded as a drug and the effects of cannabis may negatively affect the health of employees. In most instances, users develop cognitive impairment which may result in decreased working memory function. Therefore, employers must test employees when they suspect that an employee have contravened a workplace policy. There are various tests that can be used to detect THC, the preferred method for testing employees is a urine test. Upon testing an employee, the test may show a positive result for the previous use of cannabis, but it does not determine the level of impairment. However, employers are still required to take the necessary disciplinary action against employees. In the following chapter, I shall discuss the judicial approach towards employees who have tested positive for cannabis. , Thesis (LLM) -- Faculty of Law,(2024)
- Full Text:
- Date Issued: 2024-04
- Authors: Syce, Donato Burchelle
- Date: 2024-04
- Subjects: Occupational health , Cannabis , Substance use
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/63071 , vital:73184
- Description: Employers are legally obligated to provide a safe working environment for all employees. They are permitted to enforce rules that regulate the use of cannabis, including a total prohibition thereof in the workplace. Most employers adopt a policy with a zero-tolerance approach to substance abuse in the workplace, especially considering the negative effects of substances. Cannabis is regarded as a drug and the effects of cannabis may negatively affect the health of employees. In most instances, users develop cognitive impairment which may result in decreased working memory function. Therefore, employers must test employees when they suspect that an employee have contravened a workplace policy. There are various tests that can be used to detect THC, the preferred method for testing employees is a urine test. Upon testing an employee, the test may show a positive result for the previous use of cannabis, but it does not determine the level of impairment. However, employers are still required to take the necessary disciplinary action against employees. In the following chapter, I shall discuss the judicial approach towards employees who have tested positive for cannabis. , Thesis (LLM) -- Faculty of Law,(2024)
- Full Text:
- Date Issued: 2024-04
Minimum sentencing disparities in the criminal justice system
- Authors: Minnaar, Evolia Geraldine
- Date: 2024-04
- Subjects: Sentences (Criminal procedure) , Sentencing disparities , Criminal Law Amendment Act
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66229 , vital:74444
- Description: In South Africa, judicial officers have wide discretionary authority with regard to both the type of and the severity of the sentence. Sentencing is a particularly challenging part of the criminal justice process. It is challenging, because South Africa's sentencing system does not have uniform sentencing guidelines that can assist presiding officers in exercising their judicial discretion in the sentencing process. Nor does South Africa have a Sentencing Council to establish sentencing guidelines. Parliament adopted the Criminal Law Amendment Act, which provides for mandatory minimum sentences for certain serious and violent offences. One of the legislation's intended objectives was to advance consistency and avoid disparities in sentencing. The legislation has limited, but not eliminated the court's discretion. A deviation or an escape clause is provided to sentencing courts to depart from the prescribed minimum sentence. If a sentencing court is satisfied that substantial and compelling circumstances exist, departure is justified and a lesser sentence should be imposed. Legislature does not define the phrase "substantial and compelling circumstances". Nor does legislature provide guidance, regarding what the phrase constitutes and does not constitute. Thus, courts have to exercise their judicial discretion when imposing sentences. When interpreting the phrase substantial and compelling circumstances, the courts generally consider that the legislature prescribed minimum sentences as the sentences that should ordinarily be imposed for serious offences. The courts further consider that the legislature aimed to ensure a severe, standardised and consistent response from the courts. Thus, courts should not depart from the prescribed minimum sentence for lightly and flimsy reasons. Further, the traditional mitigating and aggravating factors should still be considered in sentencing. Additionally, if the court considers that the prescribed sentence will be unjust, the court has to depart from the prescribed sentence and impose a lesser sentence. The courts, however, interpret the abovementioned principles inconsistently. This is attributed to the legislature's failure to provide clear, uniform and adequate guidelines to the courts. Disparities in sentencing still permeate South Africa's sentencing system, which creates a challenge to achieve consistency in sentencing. The conclusion of this research is that there is still dissatisfaction with sentencing among the public and sentenced prisoners. Another conclusion of this research is that the legislation has exacerbated prison overcrowding. A further conclusion in this research is that the legislation has not achieved one of its fundamental objectives, namely advancing consistency and avoiding disparities in sentencing. Comparative research is also done in order to see how South Africa's system can be developed and/or improved. , Thesis (LMM) -- Faculty of Law, Department of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Minnaar, Evolia Geraldine
- Date: 2024-04
- Subjects: Sentences (Criminal procedure) , Sentencing disparities , Criminal Law Amendment Act
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66229 , vital:74444
- Description: In South Africa, judicial officers have wide discretionary authority with regard to both the type of and the severity of the sentence. Sentencing is a particularly challenging part of the criminal justice process. It is challenging, because South Africa's sentencing system does not have uniform sentencing guidelines that can assist presiding officers in exercising their judicial discretion in the sentencing process. Nor does South Africa have a Sentencing Council to establish sentencing guidelines. Parliament adopted the Criminal Law Amendment Act, which provides for mandatory minimum sentences for certain serious and violent offences. One of the legislation's intended objectives was to advance consistency and avoid disparities in sentencing. The legislation has limited, but not eliminated the court's discretion. A deviation or an escape clause is provided to sentencing courts to depart from the prescribed minimum sentence. If a sentencing court is satisfied that substantial and compelling circumstances exist, departure is justified and a lesser sentence should be imposed. Legislature does not define the phrase "substantial and compelling circumstances". Nor does legislature provide guidance, regarding what the phrase constitutes and does not constitute. Thus, courts have to exercise their judicial discretion when imposing sentences. When interpreting the phrase substantial and compelling circumstances, the courts generally consider that the legislature prescribed minimum sentences as the sentences that should ordinarily be imposed for serious offences. The courts further consider that the legislature aimed to ensure a severe, standardised and consistent response from the courts. Thus, courts should not depart from the prescribed minimum sentence for lightly and flimsy reasons. Further, the traditional mitigating and aggravating factors should still be considered in sentencing. Additionally, if the court considers that the prescribed sentence will be unjust, the court has to depart from the prescribed sentence and impose a lesser sentence. The courts, however, interpret the abovementioned principles inconsistently. This is attributed to the legislature's failure to provide clear, uniform and adequate guidelines to the courts. Disparities in sentencing still permeate South Africa's sentencing system, which creates a challenge to achieve consistency in sentencing. The conclusion of this research is that there is still dissatisfaction with sentencing among the public and sentenced prisoners. Another conclusion of this research is that the legislation has exacerbated prison overcrowding. A further conclusion in this research is that the legislation has not achieved one of its fundamental objectives, namely advancing consistency and avoiding disparities in sentencing. Comparative research is also done in order to see how South Africa's system can be developed and/or improved. , Thesis (LMM) -- Faculty of Law, Department of Criminal and Procedural Law, 2024
- Full Text:
- Date Issued: 2024-04
Public policy considerations and the enforcement of restraint of trade agreements.
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
Reasonable accommodation for persons with disabilities at the workplace
- Authors: Addae, Charles Kwadwo
- Date: 2024-04
- Subjects: Employment Equity Act 55 of 1998 , Disability rights , Disability in the work place
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66140 , vital:74420
- Description: In recent years, there has been a growing recognition of the importance of inclusivity and equal opportunities for individuals with disabilities in the workplace. This thesis aims to contribute to this discourse by examining the issue of reasonable accommodation for disabled employees, with a specific focus on the South African context. The International Labour Organisation (ILO) and the United Nations (UN) Convention on the Rights of Persons with Disabilities provide important frameworks for promoting inclusivity and equal opportunities for disabled individuals in employment. These global standards emphasise the need for reasonable accommodation, which refers to the adjustments and modifications made to the work environment or job duties to enable disabled employees to perform their tasks effectively. In South Africa, the Employment Equity Act 55 of 1998 (EEA) and the Labour Relations Act 66 of 1995 (LRA) serve as the legal framework for addressing disability rights in the workplace. These acts outline the obligations of employers to provide reasonable accommodation and protect disabled employees from discrimination. By analysing the specific provisions within the EEA and LRA, this research aims to gain insights into how South Africa addresses and implements reasonable accommodation measures. By synthesizing the perspectives of the ILO, the UN Convention, and the South African legal framework, this study aims to provide a comprehensive understanding of the challenges, successes, and potential areas for improvement in achieving workplace inclusivity for individuals with disabilities. It will examine the barriers that disabled employees face in accessing reasonable accommodation, such as attitudinal barriers, lack of awareness, and financial constraints. Additionally, it will explore the strategies and initiatives that have been successful in promoting inclusivity and equal opportunities for disabled individuals in the South African workplace. , Thesis (MSc) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Addae, Charles Kwadwo
- Date: 2024-04
- Subjects: Employment Equity Act 55 of 1998 , Disability rights , Disability in the work place
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66140 , vital:74420
- Description: In recent years, there has been a growing recognition of the importance of inclusivity and equal opportunities for individuals with disabilities in the workplace. This thesis aims to contribute to this discourse by examining the issue of reasonable accommodation for disabled employees, with a specific focus on the South African context. The International Labour Organisation (ILO) and the United Nations (UN) Convention on the Rights of Persons with Disabilities provide important frameworks for promoting inclusivity and equal opportunities for disabled individuals in employment. These global standards emphasise the need for reasonable accommodation, which refers to the adjustments and modifications made to the work environment or job duties to enable disabled employees to perform their tasks effectively. In South Africa, the Employment Equity Act 55 of 1998 (EEA) and the Labour Relations Act 66 of 1995 (LRA) serve as the legal framework for addressing disability rights in the workplace. These acts outline the obligations of employers to provide reasonable accommodation and protect disabled employees from discrimination. By analysing the specific provisions within the EEA and LRA, this research aims to gain insights into how South Africa addresses and implements reasonable accommodation measures. By synthesizing the perspectives of the ILO, the UN Convention, and the South African legal framework, this study aims to provide a comprehensive understanding of the challenges, successes, and potential areas for improvement in achieving workplace inclusivity for individuals with disabilities. It will examine the barriers that disabled employees face in accessing reasonable accommodation, such as attitudinal barriers, lack of awareness, and financial constraints. Additionally, it will explore the strategies and initiatives that have been successful in promoting inclusivity and equal opportunities for disabled individuals in the South African workplace. , Thesis (MSc) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
Regulation of sexual harassment at the workplace in Namibia
- Authors: Kayama, Ohms Moven
- Date: 2024-04
- Subjects: Workplace Sexual Harassments , Labour Law , Sex discrimination in employment
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64695 , vital:73862
- Description: Many Namibians are driven by the need for income and economic sustainability, pushing them to seek employment and make a living for themselves. However, what appears to be just participating in economic activities can be a risky and traumatic experience for some workers. For years, many have had to balance their job responsibilities while enduring discrimination, bullying, violence, and harassment in the workplace. Sexual harassment has been a major problem in the workplace, with women being the primary targets and victims. Studies have shown that gender inequality is one of the leading causes of sexual harassment in the workplace. Within the above context, this treatise aimed at answering to what extent Namibia's legislative framework regulates sexual harassment in the workplace. Namibia's legal framework was tested against the global instruments to answer the question. It was found that Namibia's legislative framework does regulate sexual harassment. However, some several gaps were identified. First, there is ambiguity and scope of legal definitions as the current definition of sexual harassment in section 5(7)(b) of the LA is not comprehensive enough. It fails to explicitly include both "quid pro quo" and "hostile environment" sexual harassment. This ambiguity could hinder victims' ability to seek justice and the legal system to prosecute offenders effectively. Second, there is an inefficacy of reporting structures, which is a significant barrier. Victims often face unclear and inefficient procedures, contributing to underreporting and unresolved cases. Developing straightforward, accessible, and efficient reporting mechanisms is crucial. Third, the absence of comprehensive workplace policies against sexual harassment exacerbates the issue. While developing a Code of Good Practice is positive, its implementation status and effectiveness remain uncertain. Another gap relates to the protection for whistleblowers and victims, as a lack of adequate legal protection for whistleblowers and witnesses discourages reporting. Strengthening legal protections can empower more individuals to come forward. The gaps identified were developed while comparing Namibia’s legislative framework to South Africa to determine whether lessons can be learned as it was found that lessons could be learned. Further recommendations is that Namibia should establish a single OHS legislation to address workplace sexual harassment by standardising policies and procedures across various industries, improving reporting standards to measure the occurrence of sexual harassment incidents, and developing a Code of Good Practice regulating sexual harassment. Lastly, it is acknowledged that Namibia's ratification of the Violence and Harassment Convention, 2019 (No. 190) is a welcomed development and shows a positive commitment in its intention to curb sexual violence in the workplace. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Kayama, Ohms Moven
- Date: 2024-04
- Subjects: Workplace Sexual Harassments , Labour Law , Sex discrimination in employment
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64695 , vital:73862
- Description: Many Namibians are driven by the need for income and economic sustainability, pushing them to seek employment and make a living for themselves. However, what appears to be just participating in economic activities can be a risky and traumatic experience for some workers. For years, many have had to balance their job responsibilities while enduring discrimination, bullying, violence, and harassment in the workplace. Sexual harassment has been a major problem in the workplace, with women being the primary targets and victims. Studies have shown that gender inequality is one of the leading causes of sexual harassment in the workplace. Within the above context, this treatise aimed at answering to what extent Namibia's legislative framework regulates sexual harassment in the workplace. Namibia's legal framework was tested against the global instruments to answer the question. It was found that Namibia's legislative framework does regulate sexual harassment. However, some several gaps were identified. First, there is ambiguity and scope of legal definitions as the current definition of sexual harassment in section 5(7)(b) of the LA is not comprehensive enough. It fails to explicitly include both "quid pro quo" and "hostile environment" sexual harassment. This ambiguity could hinder victims' ability to seek justice and the legal system to prosecute offenders effectively. Second, there is an inefficacy of reporting structures, which is a significant barrier. Victims often face unclear and inefficient procedures, contributing to underreporting and unresolved cases. Developing straightforward, accessible, and efficient reporting mechanisms is crucial. Third, the absence of comprehensive workplace policies against sexual harassment exacerbates the issue. While developing a Code of Good Practice is positive, its implementation status and effectiveness remain uncertain. Another gap relates to the protection for whistleblowers and victims, as a lack of adequate legal protection for whistleblowers and witnesses discourages reporting. Strengthening legal protections can empower more individuals to come forward. The gaps identified were developed while comparing Namibia’s legislative framework to South Africa to determine whether lessons can be learned as it was found that lessons could be learned. Further recommendations is that Namibia should establish a single OHS legislation to address workplace sexual harassment by standardising policies and procedures across various industries, improving reporting standards to measure the occurrence of sexual harassment incidents, and developing a Code of Good Practice regulating sexual harassment. Lastly, it is acknowledged that Namibia's ratification of the Violence and Harassment Convention, 2019 (No. 190) is a welcomed development and shows a positive commitment in its intention to curb sexual violence in the workplace. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
Resignation in employment Law
- Authors: Kheswa, Zimasa
- Date: 2024-04
- Subjects: Resignation , Employees--Dismissal , Disciplinary--actions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65296 , vital:74089
- Description: This treatise provides a comprehensive analysis of the legal framework governing resignations in South Africa. It examines the statutory provisions, regulations, and general principles that underpin employment termination, with a focus on voluntary resignation, constructive dismissal, and termination during disciplinary proceedings. Through an analysis of important case law, the treatise explores the practical challenges and legal ambiguities employers and employees face when navigating the resignation process. The treatise also conducts a detailed comparative legal analysis of resignation laws, focusing on the United Kingdom’s approach and how it contrasts with and could potentially inform legal practices in South Africa. Based on the findings, the treatise proposes several recommendations for improving the legal framework governing resignations in South Africa, including enacting clearer statutory guidelines, encouraging consistent judicial rulings, adopting best practices from the United Kingdom’s legal system, and facilitating stakeholder engagement. By implementing these recommendations, South Africa can create a more coherent legal framework for resignations, promoting fairness, certainty, and efficiency in employer-employee relations. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Kheswa, Zimasa
- Date: 2024-04
- Subjects: Resignation , Employees--Dismissal , Disciplinary--actions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65296 , vital:74089
- Description: This treatise provides a comprehensive analysis of the legal framework governing resignations in South Africa. It examines the statutory provisions, regulations, and general principles that underpin employment termination, with a focus on voluntary resignation, constructive dismissal, and termination during disciplinary proceedings. Through an analysis of important case law, the treatise explores the practical challenges and legal ambiguities employers and employees face when navigating the resignation process. The treatise also conducts a detailed comparative legal analysis of resignation laws, focusing on the United Kingdom’s approach and how it contrasts with and could potentially inform legal practices in South Africa. Based on the findings, the treatise proposes several recommendations for improving the legal framework governing resignations in South Africa, including enacting clearer statutory guidelines, encouraging consistent judicial rulings, adopting best practices from the United Kingdom’s legal system, and facilitating stakeholder engagement. By implementing these recommendations, South Africa can create a more coherent legal framework for resignations, promoting fairness, certainty, and efficiency in employer-employee relations. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
South Africa’s regulation of mineral mining activities in the area: lessons from the United Kingdom
- Authors: Karomo, Adelaide Aquiline
- Date: 2024-04
- Subjects: Mineral mining activities , Mining law , Deep Sea mining Act
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64411 , vital:73700
- Description: As they anticipate the benefits associated with mining polymetallic nodules, polymetallic sulphides and ferromanganese crusts, several States are currently exploring or sponsoring State-owned enterprises and private persons to explore for these mineral resources in the seabed, ocean floor and subsoil beyond national jurisdiction (the Area). However, Africa remains the only region that is not actively participating. To guide South Africa in developing a deep seabed mining regime the thesis begins by identifying the international law regulating the Area and the activities therein. Since the mineral resources in the Area have been declared the common heritage of mankind, this principle as regulated by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), and modified by the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 forms an essential component of this study. As such, the thesis determines, amongst others, the requirements for participating in mining activities in the Area (as set out in Part XI of UNCLOS) and establishes that developing a legislative framework is crucial to exempt UNCLOS States parties from liability associated with the damage caused by sponsored activities. Based on the obligations in international law, the thesis zooms in on three aspects concerning the regulation of the activities in the Area: (i) mining concessions, (ii) the relevant payment system, and (iii) environmental protection measures. In terms of these aspects, how the United Kingdom’s deep seabed mining regime regulates activities in the Area is examined. For this assessment, the thesis pays particular attention to the Deep Sea Mining Act and the domestic licences granted to UK Seabed Resources Ltd (UKSRL). In identifying lessons for South Africa, the thesis assesses the extent to which the United Kingdom’s regime complies with the international law framework and highlights the inconsistencies and legislative gaps. Thereafter, the thesis examines the South African legislative instruments regulating mining activities at sea, such as the Mineral and Petroleum Resources Development Act and the National Environmental Management Act, to determine whether their scope should be amended to regulate mining activities in the Area. As per the observations from international law and the lessons learnt from the United Kingdom's regulatory framework, the thesis argues that South Africa’s current mining framework should not be amended; separate deep seabed mining-specific legislation must be adopted. The thesis concludes by setting out the recommendations for developing such legislation. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Karomo, Adelaide Aquiline
- Date: 2024-04
- Subjects: Mineral mining activities , Mining law , Deep Sea mining Act
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64411 , vital:73700
- Description: As they anticipate the benefits associated with mining polymetallic nodules, polymetallic sulphides and ferromanganese crusts, several States are currently exploring or sponsoring State-owned enterprises and private persons to explore for these mineral resources in the seabed, ocean floor and subsoil beyond national jurisdiction (the Area). However, Africa remains the only region that is not actively participating. To guide South Africa in developing a deep seabed mining regime the thesis begins by identifying the international law regulating the Area and the activities therein. Since the mineral resources in the Area have been declared the common heritage of mankind, this principle as regulated by Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), and modified by the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 forms an essential component of this study. As such, the thesis determines, amongst others, the requirements for participating in mining activities in the Area (as set out in Part XI of UNCLOS) and establishes that developing a legislative framework is crucial to exempt UNCLOS States parties from liability associated with the damage caused by sponsored activities. Based on the obligations in international law, the thesis zooms in on three aspects concerning the regulation of the activities in the Area: (i) mining concessions, (ii) the relevant payment system, and (iii) environmental protection measures. In terms of these aspects, how the United Kingdom’s deep seabed mining regime regulates activities in the Area is examined. For this assessment, the thesis pays particular attention to the Deep Sea Mining Act and the domestic licences granted to UK Seabed Resources Ltd (UKSRL). In identifying lessons for South Africa, the thesis assesses the extent to which the United Kingdom’s regime complies with the international law framework and highlights the inconsistencies and legislative gaps. Thereafter, the thesis examines the South African legislative instruments regulating mining activities at sea, such as the Mineral and Petroleum Resources Development Act and the National Environmental Management Act, to determine whether their scope should be amended to regulate mining activities in the Area. As per the observations from international law and the lessons learnt from the United Kingdom's regulatory framework, the thesis argues that South Africa’s current mining framework should not be amended; separate deep seabed mining-specific legislation must be adopted. The thesis concludes by setting out the recommendations for developing such legislation. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
Statutory conciliation as a labour-dispute-resolution mechanism
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Masaya, Ruvimbo Cheryl
- Date: 2024-04
- Subjects: Labor disputes -- South Africa , South Africa. -- Labour Relations Act, 1995 , Labor -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa. -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65701 , vital:74229
- Description: South African labour dispute resolution is a product of the country’s problematic past which was based on inequality and division. The new political dispensation led to the adoption of the Constitution of the Republic of South Africa in 1996, which enshrined a variety of basic human rights for all people within the Republic. Amongst these rights was section 23, which provided for and still protects the right to fair labour practices for all. In order to further give effect to this right, the Labour Relations Act was promulgated, with section 112 of the Act establishing the Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA). One of the main mandatory functions of the CCMA is that of statutory conciliation. Statutory conciliation must also be performed by any other accredited bodies such as bargaining councils. The term statutory conciliation refers to a process that occurs under the direction of an impartial third party where parties to a dispute endeavour to reach an agreement in order to settle the dispute. The process is without prejudice and proceedings are intended to help the parties find an amicable solution. It can be a very powerful tool to settle disputes in the labour law context where there are disputes between employers and employees where internal procedures have been exhausted and a deadlock has been reached. Statutory conciliation is the first step where a case has been referred to the CCMA. According to the CCMA, 3 844 169 cases have been referred to it since its establishment in 1996.1 In the 2021/22 financial year thus far, the number of case referrals to the CCMA sits at 156 777, a reflection of how well utilised the mechanism is. The main aim of this treatise is to explore the role of statutory conciliation as a mechanism of labour dispute resolution. The history and development of labour dispute resolution in South Africa will be examined; briefly followed by an explanation of the process of conciliation. The treatise will also consider the limitations of the process of statutory conciliation, as the process is not immune to abuse by parties. Since the advent of the Labour Relations Act, the courts have had to consider various aspects of conciliation, in particular concerning the confidentiality of the process and whether a commissioner may be compelled to testify on the conciliation process at arbitration or the Labour Court. In addition, the ambit of the conciliation commissioner’s functions and powers will also be considered. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
The horizontal application of the environmental right to Juristic persons at sea
- Authors: Maseka, Ntemesha Mwila
- Date: 2024-04
- Subjects: Environmental law--South Africa , Marine Living Resources Act , Marine environment
- Language: English
- Type: Doctorial theses , text
- Identifier: http://hdl.handle.net/10948/66098 , vital:74350
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration, and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty- bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Maseka, Ntemesha Mwila
- Date: 2024-04
- Subjects: Environmental law--South Africa , Marine Living Resources Act , Marine environment
- Language: English
- Type: Doctorial theses , text
- Identifier: http://hdl.handle.net/10948/66098 , vital:74350
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration, and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty- bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
The horizontal application of the environmental right to juristic persons at sea
- Authors: Maseka, Ntemesha Mliwa
- Date: 2024-04
- Subjects: Economic zones (Law of the sea) , Law of the sea , Criminal liability of juristic persons -- South Africa , Environmental Law , Territorial waters
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/65739 , vital:74233
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty-bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, Department of Public Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Maseka, Ntemesha Mliwa
- Date: 2024-04
- Subjects: Economic zones (Law of the sea) , Law of the sea , Criminal liability of juristic persons -- South Africa , Environmental Law , Territorial waters
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/65739 , vital:74233
- Description: Due to its vast resources, the ocean has been designated the new “economic frontier”. States are focusing on unlocking this potential to boost economic growth, employment and innovation. Because of their substantial resources, corporations are key actors in driving the development of the ocean economy. Although corporations undeniably contribute significantly to realising the ocean economy’s potential, their main activities—including offshore oil and gas exploration and production and fishing—pose great threats to marine ecosystems. This harm to the marine environment may also threaten and adversely impact many people’s lives, health, well-being, livelihood, culture and traditions. In the South African context, this reality is notably seen through Operation Phakisa. This government initiative aims to unlock the economic potential of the ocean economy to expedite the implementation of solutions to poverty, unemployment and inequality. This race to utilise the oceans and its resources brings to the fore the interaction between the right to have the environment protected and socio-economic development anticipated in section 24 of the South African Constitution. The South African Constitution through section 8(2) acknowledges that non-State actors such as corporations can abuse human rights in horizontal relationships. However, unlike the State, non-State actors are only bound in certain circumstances. Therefore, this thesis examines whether and, if so, to what extent section 24 of the Constitution binds juristic persons at sea. This thesis examines the direct application of international norms to non-State actors to determine how international human rights law addresses non-State actors' conduct that impairs an individual’s guaranteed rights. It was determined that international human rights law has an indirect horizontal effect. This means that in cases where a non-State actor impairs an individual’s human rights, international law permits the victim to hold the State responsible for the violation rather than the non-State actor who was the perpetrator. For a non-State actor to incur direct obligations to uphold certain human rights, the State must create these obligations in its domestic law. The thesis explored how the South African Bill of Rights imposes direct human rights obligations on non-State actors in a horizontal dispute. It was found that whether an entrenched right binds a non-State actor depends on a multi-factor enquiry confirmed by the Constitutional Court. Based on that enquiry, it concluded that the environmental right is capable of and suitable for horizontal application. Furthermore, non-State actors can bear positive and negative constitutional human rights obligations arising from the environmental right. A failure to comply with these obligations would violate this constitutional right. The most significant findings of this thesis pertain to the applicability of South Africa’s human rights law framework at sea. This is because the legal regime applicable at sea differs from that on land. The United Nations Convention on the Law of the Sea assigns jurisdiction to States in the different maritime zones for different purposes. To elucidate South Africa's rights and obligations as delineated in the LOSC, the thesis focused on two examples: the exploitation of marine living resources and the prospection, exploration and exploitation of marine non-living resources. Subsequently, the extent to which South Africa has taken measures in its domestic law to implement those rights and duties was assessed. In addition, this approach was appropriate because questions concerning the horizontal application of the South African Bill of Rights necessitate contextual analysis and cannot be answered a priori and in the abstract. Using the multi-factor enquiry, the study showed that, in principle, section 24 of the Constitution might bind juristic persons within South Africa’s territorial jurisdiction, exclusive economic zone jurisdiction, continental shelf jurisdiction and under South Africa’s personal jurisdiction. Furthermore, juristic persons who control vessels registered in South Africa or control a vessel entitled to be registered in South Africa but has departed to a place outside South Africa without being registered might also be constitutionally bound based on flag State jurisdiction. The sole means of preventing South Africa from exercising its authority this way requires severing the jurisdictional connection between South Africa and the juristic person. It was recommended that in ocean-related matters, the connecting factor between South Africa and the juristic person must be considered as an additional factor in the enquiry to determine whether a particular right binds that juristic person. Additionally, since the scope of corresponding rights-holders are “everyone”, even people outside South Africa present in places where the juristic person who is the corresponding duty-bearer operates or where their conduct is felt can hold these actors accountable for their constitutional human rights obligations. , Thesis (LLD) -- Faculty of Law, Department of Public Law, 2024
- Full Text:
- Date Issued: 2024-04
The promotion of the right to access adequate housing for street children in Kenya
- Authors: Wanjala, Esther Nasimiyu
- Date: 2024-04
- Subjects: Children's rights , Children's act , Street children
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64358 , vital:73679
- Description: This thesis explores the fundamental right to housing and shelter, recognised at national, regional, and international levels, focusing on its application to street children in Kenya. Despite constitutional provisions, street children in Kenya face exclusion from socio-economic interventions, particularly in the realm of housing and shelter. This exclusion stems from the absence of specific legislation addressing their unique needs. Existing laws, such as the Children Act, 2022 and the Housing Act, 2007 fall short of safeguarding the rights of street children, perpetuating discrimination based on economic status. The research examines international, regional, and national legal frameworks to uncover obstacles hindering street children from enjoying their legally protected human rights, including housing and shelter. Legal instruments such as the Universal Declaration of Human Rights, International Covenant on Economic, Social, and Cultural Rights, International Covenant on Civil and Political Rights, Convention on the Rights of the Child, the African Charter on Human and Peoples Rights, and the African Charter on the Rights and Welfare of a Child and policies like the Sustainable Development Goals 2030, the African Union Agenda 2063, and Agenda 2040 were considered. The research employed qualitative research methodology that included theoretical and non-empirical methods. It used a combination of descriptive, correlative, and limited comparative analysis of the status of street children in the East African Community State Parties of Tanzania, Uganda, and Rwanda, as well as South Africa. Theoretical perspectives, including human rights-based, vulnerability, othering, and capability theories, informed the discussions on improving the status of street children in Kenya. The study employed critical social justice and vulnerability theories to analyse how discrimination and prejudices in society can violate fundamental rights, particularly street children's rights. The findings of the study revealed the inadequate legal and institutional frameworks in promoting street children's rights in Kenya. The study referred to the best practices in the select East African Community State Parties and South Africa that Kenya can emulate to benefit street children and realise the right to shelter and adequate housing. The study recommends legal and policy reviews to protect street children's rights to adequate housing and shelter guided by constitutional and international standards. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Wanjala, Esther Nasimiyu
- Date: 2024-04
- Subjects: Children's rights , Children's act , Street children
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/64358 , vital:73679
- Description: This thesis explores the fundamental right to housing and shelter, recognised at national, regional, and international levels, focusing on its application to street children in Kenya. Despite constitutional provisions, street children in Kenya face exclusion from socio-economic interventions, particularly in the realm of housing and shelter. This exclusion stems from the absence of specific legislation addressing their unique needs. Existing laws, such as the Children Act, 2022 and the Housing Act, 2007 fall short of safeguarding the rights of street children, perpetuating discrimination based on economic status. The research examines international, regional, and national legal frameworks to uncover obstacles hindering street children from enjoying their legally protected human rights, including housing and shelter. Legal instruments such as the Universal Declaration of Human Rights, International Covenant on Economic, Social, and Cultural Rights, International Covenant on Civil and Political Rights, Convention on the Rights of the Child, the African Charter on Human and Peoples Rights, and the African Charter on the Rights and Welfare of a Child and policies like the Sustainable Development Goals 2030, the African Union Agenda 2063, and Agenda 2040 were considered. The research employed qualitative research methodology that included theoretical and non-empirical methods. It used a combination of descriptive, correlative, and limited comparative analysis of the status of street children in the East African Community State Parties of Tanzania, Uganda, and Rwanda, as well as South Africa. Theoretical perspectives, including human rights-based, vulnerability, othering, and capability theories, informed the discussions on improving the status of street children in Kenya. The study employed critical social justice and vulnerability theories to analyse how discrimination and prejudices in society can violate fundamental rights, particularly street children's rights. The findings of the study revealed the inadequate legal and institutional frameworks in promoting street children's rights in Kenya. The study referred to the best practices in the select East African Community State Parties and South Africa that Kenya can emulate to benefit street children and realise the right to shelter and adequate housing. The study recommends legal and policy reviews to protect street children's rights to adequate housing and shelter guided by constitutional and international standards. , Thesis (LLD) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
The right of non-unionised employees and minority unions to be consulted prior to dismissals based on operational requirements
- Karuaihe, Janee, Raahua, Sigfried
- Authors: Karuaihe, Janee, Raahua, Sigfried
- Date: 2024-04
- Subjects: Unfair labor practice , Employees--Dismissal , Labor unions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64481 , vital:73738
- Description: The position of workers and trade unions has changed drastically since the introduction of a Constitutional dispensation in South Africa. The Constitution affords both workers and trade unions protectable rights and greater influence at the workplace. To vindicate and assert these rights trade unions and workers approach the courts to vindicate these rights. Section 23 of the Constitution deals with labour rights and section 18 gives effect to the right to freedom of association. To give content to these rights the Constitution provides that courts must have regard to international law. In the context of these rights, one of the principles recognised by the International Labour Organisation through its Conventions is the principle of majoritarianism. In short, the principle endeavours to give effect to the will of trade unions representing the majority of employees in a workplace in relation to trade unions that represent the minority. This is achieved through collective bargaining, which typically results in the conclusion of collective agreements, whereby trade unions are given exclusive and or preferential rights. In AMCU v Royal Bafokeng the Constitutional Court held that, the principle of majoritarianism applies to and finds expression in section 189 of the Labour Relations Act. The effect of this judgment is that members of a minority trade union may be represented by a rival majority trade union during the consultation process when an employer has contemplated dismissals based on operational requirements. The minority judgement adopted a different approach, reasoning that, the principle of majoritarianism ought not to find application in the context of dismissals based on operational requirements. It found that section 189 is intended to give effect to the Constitutional right to fair labour practices and must therefore allow a fair procedure that permits an employee to choose who may represent him/her in a consultation process prior to dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Karuaihe, Janee, Raahua, Sigfried
- Date: 2024-04
- Subjects: Unfair labor practice , Employees--Dismissal , Labor unions
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64481 , vital:73738
- Description: The position of workers and trade unions has changed drastically since the introduction of a Constitutional dispensation in South Africa. The Constitution affords both workers and trade unions protectable rights and greater influence at the workplace. To vindicate and assert these rights trade unions and workers approach the courts to vindicate these rights. Section 23 of the Constitution deals with labour rights and section 18 gives effect to the right to freedom of association. To give content to these rights the Constitution provides that courts must have regard to international law. In the context of these rights, one of the principles recognised by the International Labour Organisation through its Conventions is the principle of majoritarianism. In short, the principle endeavours to give effect to the will of trade unions representing the majority of employees in a workplace in relation to trade unions that represent the minority. This is achieved through collective bargaining, which typically results in the conclusion of collective agreements, whereby trade unions are given exclusive and or preferential rights. In AMCU v Royal Bafokeng the Constitutional Court held that, the principle of majoritarianism applies to and finds expression in section 189 of the Labour Relations Act. The effect of this judgment is that members of a minority trade union may be represented by a rival majority trade union during the consultation process when an employer has contemplated dismissals based on operational requirements. The minority judgement adopted a different approach, reasoning that, the principle of majoritarianism ought not to find application in the context of dismissals based on operational requirements. It found that section 189 is intended to give effect to the Constitutional right to fair labour practices and must therefore allow a fair procedure that permits an employee to choose who may represent him/her in a consultation process prior to dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2024
- Full Text:
- Date Issued: 2024-04
The right to parental leave for employees in same sex marriages
- Nonyukela, Thembelihle Yolanda
- Authors: Nonyukela, Thembelihle Yolanda
- Date: 2024-04
- Subjects: Family leave--Law and legislation , Same-sex marriage , Same-sex parents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66264 , vital:74467
- Description: The Constitutional Court declared in the much-celebrated decision of Minister of Home Affairs v Fourie that it was discriminatory “for the state to deny same-sex couples the right to marry.” The Civil Union Act became effective in 2006, and notwithstanding the statute's title, it permits same-sex marriages. The latter made South Africa one of the few nations globally to approve same-sex marriage and the first one on the continent. In fact, the legislation permits same-sex, together with heterosexual individuals, to enter into legally binding unions, and both parties can elect whether to call the relationship a marriage or just a civil relationship. Regardless of the moniker chosen, the ramifications in law remain identical to those enumerated in the Marriage Act, permitting only relationships between individuals of opposite genders. A few years before the legalization of same-sex marriages, rulings from the courts and legislation recognized permanent partnerships between people of the same gender for certain reasons, yet there was no system in place that provided a platform for partnership registration. A number of court judgments have established that a parent's sexual orientation should not be a factor in custody determinations. In 2002, a court ruled in Du Toit v Minister of Welfare and Population Development that same-sex couples had the same rights to adopt children as married couples. This meant that same-sex couples were entitled to adopt children together and that any partner could adopt the children of the other. The Children's Act, which has since replaced the adoption legislation, makes it possible for spouses and "partners in a permanent domestic life partnership" of any sexual orientation to adopt. In the case MIA v Information Technology Agency (Pty) Ltd, the paucity of comprehensive provisions for parental leave in South African law emerged to the forefront. In this particular case, the worker and his spouse entered into a civil union pursuant to the Civil Union Act. They agreed to start their own family and engaged in an arrangement for surrogate motherhood. The worker agreed to carry out the birth-mother's usual responsibilities. In contemplation of their child's delivery, the worker approached his employer requesting four months of maternity leave. The employer denied the request for leave on the pretext that the worker was not the mother of the child by blood. The worker petitioned the Labour Court for a decree directing the employer to provide her with maternity leave, arguing that the employer's denial constituted discrimination based on gender, sex, family responsibilities, and sexual orientation. The court concurred and ruled that permission to go on leave be granted. The court declared that there should be no exceptions to maternity leave for women who performed the employee's obligations, and that the duration of such leave should be the same as that for a biological mother. The court also determined that the best interests of the child being born must be considered when determining a mother's eligibility for maternity leave. The Labour Court noted that South African laws lagged behind in other areas of social development and related legislation. By failing to include parental leave for all potential 'parents' in its 'family law', it failed to attain the Constitution's goals regarding the rights of children and parents. Amendments to the Civil Union Act and the Children's Act made it possible for individuals in same-sex relationships to adopt children or enter surrogacy agreements and become parents. Legislation still does not grant these parents the right to parental leave. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Nonyukela, Thembelihle Yolanda
- Date: 2024-04
- Subjects: Family leave--Law and legislation , Same-sex marriage , Same-sex parents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66264 , vital:74467
- Description: The Constitutional Court declared in the much-celebrated decision of Minister of Home Affairs v Fourie that it was discriminatory “for the state to deny same-sex couples the right to marry.” The Civil Union Act became effective in 2006, and notwithstanding the statute's title, it permits same-sex marriages. The latter made South Africa one of the few nations globally to approve same-sex marriage and the first one on the continent. In fact, the legislation permits same-sex, together with heterosexual individuals, to enter into legally binding unions, and both parties can elect whether to call the relationship a marriage or just a civil relationship. Regardless of the moniker chosen, the ramifications in law remain identical to those enumerated in the Marriage Act, permitting only relationships between individuals of opposite genders. A few years before the legalization of same-sex marriages, rulings from the courts and legislation recognized permanent partnerships between people of the same gender for certain reasons, yet there was no system in place that provided a platform for partnership registration. A number of court judgments have established that a parent's sexual orientation should not be a factor in custody determinations. In 2002, a court ruled in Du Toit v Minister of Welfare and Population Development that same-sex couples had the same rights to adopt children as married couples. This meant that same-sex couples were entitled to adopt children together and that any partner could adopt the children of the other. The Children's Act, which has since replaced the adoption legislation, makes it possible for spouses and "partners in a permanent domestic life partnership" of any sexual orientation to adopt. In the case MIA v Information Technology Agency (Pty) Ltd, the paucity of comprehensive provisions for parental leave in South African law emerged to the forefront. In this particular case, the worker and his spouse entered into a civil union pursuant to the Civil Union Act. They agreed to start their own family and engaged in an arrangement for surrogate motherhood. The worker agreed to carry out the birth-mother's usual responsibilities. In contemplation of their child's delivery, the worker approached his employer requesting four months of maternity leave. The employer denied the request for leave on the pretext that the worker was not the mother of the child by blood. The worker petitioned the Labour Court for a decree directing the employer to provide her with maternity leave, arguing that the employer's denial constituted discrimination based on gender, sex, family responsibilities, and sexual orientation. The court concurred and ruled that permission to go on leave be granted. The court declared that there should be no exceptions to maternity leave for women who performed the employee's obligations, and that the duration of such leave should be the same as that for a biological mother. The court also determined that the best interests of the child being born must be considered when determining a mother's eligibility for maternity leave. The Labour Court noted that South African laws lagged behind in other areas of social development and related legislation. By failing to include parental leave for all potential 'parents' in its 'family law', it failed to attain the Constitution's goals regarding the rights of children and parents. Amendments to the Civil Union Act and the Children's Act made it possible for individuals in same-sex relationships to adopt children or enter surrogacy agreements and become parents. Legislation still does not grant these parents the right to parental leave. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
The value-added tax implications in respect of the supply of services by foreign companies in South Africa
- Authors: Walker, Dean Thomas
- Date: 2024-04
- Subjects: Value-added tax , Taxation , Foreign company registration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64305 , vital:73673
- Description: A foreign company providing services in South Africa may, depending on the nature of the services rendered, do so directly or through its branch. Where the foreign company or its branch in providing such services falls within the ambit of the compulsory registration requirements set out in section 23, the foreign company or its branch is obliged to register as a vendor and the provisions of the VAT Act thereafter apply to such foreign company or its branch. The nature of the services rendered determine whether it is the foreign company or its branch which is obliged to register as a vendor. Where the services rendered constitute 'electronic services' falling within the scope of paragraph (vi) of the enterprise definition, it is the foreign company which must register as a vendor and not its branch. In all other cases (apart from the supply of 'imported services'), where services are rendered in South Africa, it is the branch which must register as a vendor, unless it is a 'dependent agent' of the foreign company as envisaged in the Wenco case 1, in the sense that it has no clients of its own in South Africa and supplies only services on behalf of the foreign company. In such a case the branch does not conduct an 'enterprise' and its foreign company must register as a vendor. Where a dependent branch supplies services to the foreign company's main business abroad, the supply is not zero-rated in terms of section 11 (2)(o) as, on the authority of the Wenco case, the provisions of section 8(9) have no application in such a case. Generally, where a foreign company or its branch supplies services in South Africa and is obliged to register as a vendor, output tax is levied in terms of section 7(1 )(a) and an input tax deduction may, in certain circumstances, be claimed provided that the foreign company or its branch is actually registered for VAT. In the case of 'imported services' it is the recipient which is liable for VAT thereon in certain circumstances. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Walker, Dean Thomas
- Date: 2024-04
- Subjects: Value-added tax , Taxation , Foreign company registration
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/64305 , vital:73673
- Description: A foreign company providing services in South Africa may, depending on the nature of the services rendered, do so directly or through its branch. Where the foreign company or its branch in providing such services falls within the ambit of the compulsory registration requirements set out in section 23, the foreign company or its branch is obliged to register as a vendor and the provisions of the VAT Act thereafter apply to such foreign company or its branch. The nature of the services rendered determine whether it is the foreign company or its branch which is obliged to register as a vendor. Where the services rendered constitute 'electronic services' falling within the scope of paragraph (vi) of the enterprise definition, it is the foreign company which must register as a vendor and not its branch. In all other cases (apart from the supply of 'imported services'), where services are rendered in South Africa, it is the branch which must register as a vendor, unless it is a 'dependent agent' of the foreign company as envisaged in the Wenco case 1, in the sense that it has no clients of its own in South Africa and supplies only services on behalf of the foreign company. In such a case the branch does not conduct an 'enterprise' and its foreign company must register as a vendor. Where a dependent branch supplies services to the foreign company's main business abroad, the supply is not zero-rated in terms of section 11 (2)(o) as, on the authority of the Wenco case, the provisions of section 8(9) have no application in such a case. Generally, where a foreign company or its branch supplies services in South Africa and is obliged to register as a vendor, output tax is levied in terms of section 7(1 )(a) and an input tax deduction may, in certain circumstances, be claimed provided that the foreign company or its branch is actually registered for VAT. In the case of 'imported services' it is the recipient which is liable for VAT thereon in certain circumstances. , Thesis (LLM) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-04