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An overview of absence without leave, sick absence and absconding in the local government sector

  • Authors: Kalawe, Thozama Mavis
  • Date: 2018
  • Subjects: Absenteeism (Labor) , Local government -- South Africa Civil service -- Labor productivity -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30430 , vital:30943
  • Description: The treatise will investigate, examine and determine how the three types of absenteeism affects the local government sector, the impact absenteeism has on service delivery. The study will examine how the employers and employees are protected by legislation when confronted with absenteeism. The three types of absenteeism, namely absence without leave, desertion and abuse of sick leave can be considered as misconduct which may result in termination of contract of employment. The treatise will unpack these three types of absenteeism in relation to the provisions applicable in South African legislation, policies and collective agreements of the local government. A comparison of the local government policies with public, and private sector will be considered. The case study of local government will be provided wherein the basic services that are provided by local government will be discussed to give a better understanding of how these three types of absenteeism impact on the delivery of such services. Recommendation will be provided regarding research findings and conclusion drawn from literature review.
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  • Date Issued: 2018

Assessment of the Tyhume river health status using macroinvertebrates as indicators

  • Authors: Fasi, Nokonwaba Nellineth
  • Date: 2018
  • Subjects: Invertebrates -- South Africa -- Eastern Cape Rivers -- South Africa -- Eastern Cape
  • Language: English
  • Type: Thesis , Masters , Zoology
  • Identifier: http://hdl.handle.net/10353/10861 , vital:35879
  • Description: Ten sampling sites were selected along the Tyhume River corresponding to the upper, mid and lower reaches of the River. In total 48 families were collected during the study. The study observed different types of macroinvertebrate taxa; very low tolerant to pollution (e.g Heptageniidae; Notonemouridae; Perlidae), moderately pollution-tolerant (e.g. Caenidae; Chlorolestidae; Tricorythidae) and very tolerant of polluted conditions (e.g. Chironomidae; Muscidae; Oligochaetae). Both univariate and multivariate analyses were done using PRIMER V6. Above Confluence (ABCON, Site 10) had the highest number (37) of species while Mtloko (MTLOK, Site 2) had the lowest number (24) (Chi-square = 0.87; p < 0.05). The highest number of individuals (4023) was recorded at Macfairlane (MACFA, Site 5) while the lowest number (1240) at Honeydale (HONEY, Site 8) (Chi-square = 0.00; p < 0.05). Margalef’s index indicated Above Confluence (ABCON, Site 10; 4.762), had the highest values of species richness while Mtloko (MTLOK, Site 2; 3.227) had the lowest values (Chi-square = 1; p < 0.05). Pielou's evenness index indicated that Gqumashe (GQUMA, Site 7) had the highest values (0.7137), while Macfairlane (MACFA; Site 5) had the lowest (0.5109) (chi-square = 1; p < 0.05). Shannon-Wiener diversity indices, the highest diversity index values (2.573) of macroinvertebrates was recorded at Honeydale (HONEY, Site 8), and the lowest (1.684) at Macfairlane (MACFA, Site 5) (chi-square = 1; p < 0.05). The ASPT Scores did not differ significantly (P > 0.05) across sites. No significant difference was observed in the ASPT scores across the 10 sites (F = 0.75; df = 9.60; P > 0.05). Site 4 had the highest mean ASPT Scores with mean of 7.6), whereas the lowest. Three biotopes types, namely: stone, vegetation, gravel-sand-mud, stone and vegetation being the dominant biotopes at the 10 sites. The cluster analyses showed that macroinvertebrates were dependent on biotope preference while stone biotope showing greater macroinvertebrate densities. Euclidean distance of site classification with respect to physico-chemical parameters showed very low stress value (0.01) implying that physico-chemical parameters influenced species distribution within each sampling site. The results also showed that good health conditions existed at the most upstream sites than the lower reaches of the river, thus, indicating impacts of pollution within the river.
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  • Date Issued: 2018

Automatic unfair dismissal with reference to section 187(1)(c) of the Labour Relations Act

  • Authors: Janniker, Jonathan
  • Date: 2018
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30584 , vital:30966
  • Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
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  • Date Issued: 2018

Balancing the interests of employer and employee in dismissal for misconduct

  • Authors: Pillay, Prushothman Subramoney
  • Date: 2018
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/34414 , vital:33375
  • Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
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  • Date Issued: 2018

Capital v Revenue: the income tax test of intention

  • Authors: Haworth, Christi-Anne
  • Date: 2018
  • Subjects: Income tax -- Law and legislation -- New Zealand , Income tax -- Law and legislation -- South Africa Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- New Zealand Tax planning
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30028 , vital:30811
  • Description: The purpose of this research was to identify and comment on various interpretive problems posed by using ‘intention’ as a legal test to classify a taxpayer’s taxable gross income. Using an integrative literature review method, the research provides a detailed discussion of the historical interpretation of this test, and identifies various interpretive problems arising from the inconsistent and differing interpretation of this test by the courts. Having identified that certain jurists and authors take guidance from criminal law in their interpretation of intention, an analysis of the approach in this area of law, as well as in the law of delict is made. The difference between motive and intention forms part of this discussion. The conclusion is drawn that intention as it is used in the criminal law is not an appropriate test to be applied in income tax. Having drawn this conclusion, and expanding on an identified jurisdiction a comparison is drawn between the approach by courts in New Zealand and courts in South Africa regarding the purpose with which a taxpayer acquires an asset or undertakes a transaction. The difference between purpose and intention is expanded upon and explained as it is seen by the courts in this jurisdiction. Throughout the body of the treatise certain recommendations are made, and parallels are drawn between the South African approach and the approach in New Zealand.
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  • Date Issued: 2018

Constitutional and human-rights aspects of marine spatial planning

  • Authors: Chasakara, Rachael Sharon
  • Date: 2018
  • Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/23470 , vital:30566
  • Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
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  • Date Issued: 2018

Discrimination and dismissal based on age

  • Authors: Hlohlolo, Sephiri
  • Date: 2018
  • Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30309 , vital:30929
  • Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
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  • Date Issued: 2018

Employee pension and provident fund rights

  • Authors: Richard, Makhado Fhatuwani
  • Date: 2018
  • Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/35156 , vital:33642
  • Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
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  • Date Issued: 2018

Import licensing regulation within the WTO: a case study of the dispute between Zimbabwe and South Africa over the Control of Goods (Open General Import Licence) Notice of 2016 (Statutory Instrument 64)

  • Authors: Kamunjoma, Charles https://orcid.org/0000-0002-1930-4341
  • Date: 2018
  • Subjects: Import quotas , Customs unions , Africa, Southern -- Economic integration
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/27854 , vital:70097
  • Description: Over the years, Zimbabwe has arbitrarily enforced trade restrictive measures including mandatory inspections on certain products, duty increases, surtaxes and import permits on basic products such as cooking oil. The measures have been allegedly targeting goods from South Africa. Amongst the most recent restrictive measures imposed by Zimbabwe is SI 64 of 2016 that now operates as SI 122 of 2017. In response to SI 64, for the first time, South Africa threatened retaliation. As a result, there is visible trade tension between Zimbabwe and South Africa. With the absence of an effective dispute settlement mechanism within SADC, or most African Regional Economic Communities RECs for that matter, a WTO approach to the issue will provide valuable insights on how else South Africa (and other African countries) can deal with cross-border trade problems such as the ones posed by SI 64. , Thesis (LLM) -- Faculty of Law, 2018
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  • Date Issued: 2018

Labour dispute resolution in Kenya: compliance with international standards and a comparison with South Africa

  • Authors: Gathongo, Johana Kambo
  • Date: 2018
  • Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa , Dispute resolution (Law) – Kenya , Mediation and conciliation, Industrial -- Kenya , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Kenya
  • Language: English
  • Type: Thesis , Doctoral , LLD
  • Identifier: http://hdl.handle.net/10948/23980 , vital:30657
  • Description: The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
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  • Date Issued: 2018

Labour dispute resolution in South Africa and Malawi: a comparative study

  • Authors: Banda, Lisa Malopa
  • Date: 2018
  • Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/23891 , vital:30639
  • Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
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  • Date Issued: 2018

Labour rights of fishers in Namibia

  • Authors: Hamukuaya, Nghililewanga Hashali
  • Date: 2018
  • Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30061 , vital:30815
  • Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
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  • Date Issued: 2018

Mechanisms for implementing affirmative action

  • Authors: Nongogo, Nqabisa Thandazile
  • Date: 2018
  • Subjects: Affirmative action programs -- South Africa , Minorities -- Employment -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/33475 , vital:32878
  • Description: The aim of this study was to analyse the effective implementation of affirmative action. In South Africa. Affirmative action is seen as a means of correcting historical injustices and levelling the playing fields to enable all South Africans to gain equal access to opportunities from which they were previously restricted. This study observed that even though South Africa is now governed by a new democratic order historical workplace inequalities exists which still need to be addressed. Further it was noted that not only compelled to redress inequalities by the Constitution, the South African government was motivated by the ILO to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Therefore, in an effort to narrow the gap between previously advantaged and disadvantaged individuals, the government passed a series of employment laws mandating, amongst other things, affirmative action. By doing so the South African government sought to ensure that all employers are compelled to take positive steps to redress disadvantage and inequality. Be that as it may, the study revealed that affirmative action is theoretically justifiable and has an important role in the achievement of equal opportunities and equality of outcome but in practice, various problems exist. Generally, the study reveals that notwithstanding the legislative framework of affirmative action in South Africa, inequalities continues to exist in employment, a clear signal of inadequate implementation of affirmative action. The study reveals that black people, women and unable persons are identified as primary victims of workplace inequalities. Continuity of work inequalities are statistically portrayed graphically in this year’s (2017) Quarterly Labour Force Survey (QLFS) conducted and published by Statistics South Africa on the Economically Active Population (EAP) still indicates no confidence to implementation of affirmative action measures nationwide. Reviews of implementation of affirmative action, recruitment strategies, retrenchment plans are strongly proposed to combat controversies and challenges surrounding the implementation of affirmative action. A sunset clause is highly recommended to projectize affirmative action. Similarly, with determined advocacy for affirmative action, the study anticipates progressive equality and sustainable justice in South African employment in the immediate future. Chapter five of this study recommends remedial measures to address the challenges and impediments for effective implementation of affirmative action.
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  • Date Issued: 2018

Postpartum depression as defence against criminal liability

  • Authors: Crafford, Krisascha , David, Desiree
  • Date: 2018
  • Subjects: Postpartum depression -- South Africa , Mothers -- Mental health -- South Africa Female offenders -- South Africa Feminist criminology
  • Language: English
  • Type: Thesis , Masters , LLM`
  • Identifier: http://hdl.handle.net/10948/38648 , vital:34863
  • Description: The dissertation addresses the phenomenon of postpartum depression (and especially its most severe form of postpartum psychosis) against the backdrop of the defense of pathological criminal incapacity (the defense of mental illness, also known as insanity defense) the submission is made that, in the instance where a mother with postpartum depression, and especially postpartum psychosis causes the death of her infant or child such an accused could raise the defense of mental illness. This is due to the impact of the affliction on her mental facilities caused by the condition she was suffering from at the time of causing the death of her infant or child, such condition could render her incapable of distinguishing between right and wrong to act in accordance with such appreciation. If she can prove this, she cannot be held criminally liable for her actions, due to the absence of the required means rea element.
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  • Date Issued: 2018

Public sector employees and their right to just administrative action

  • Authors: Kemp, Matthew
  • Date: 2018
  • Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30616 , vital:30980
  • Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
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  • Date Issued: 2018

Ratifying the ILO convention no. 102 (social security minimum standards convention, 1952) by South Africa

  • Authors: Xakaxa, Xoliswa
  • Date: 2018
  • Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/36452 , vital:33945
  • Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
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  • Date Issued: 2018

Regulating essential services, maintenance services and minimum services agreements

  • Authors: Zama, Ntokozo Patrick
  • Date: 2018
  • Subjects: Collective labor agreements
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/21582 , vital:29637
  • Description: South Africa has in the recent past seen employees embarking in strike action, even in sectors designated as essential services. The impact adversely affected inter alia economic growth, investor confidence, international credit ratings and the high rate of unemployment. The Labour Relations Act 66 of 1995 from its inception on 11 November 1996, and as amended, in 2002 and in 2015, has brought about some minor changes to the model aimed at regulating essential services, maintenance services and minimum services agreements. This research is aimed at investigating; whether essential services, maintenance services and minimum services agreements are designed to unjustifiably limit the right to strike or not. The Constitution1 and the Labour Relations Act, 19952 encourages parties in employment relationship to engage in collective bargaining. Mechanisms such as a no duty to bargain envisaged within the current LRA regulatory framework, appears to be undermining the significance of ensuring that parties engaged within services designated as essential and maintenance services exercise their fundamental right to strike and to bargain collectively. The Essential Services Committee when dispensing with its statutory functions may be unjustifiably limiting the right to strike for employees engaged in essential and maintenance services. Some employers may be to some degree reluctant to trigger maintenance services provisions as the LRA appears to be adopting a voluntarism principle when regulating collective bargaining, as the Act is encouraging employers to deal with the provision of maintenance services within collective agreements. An introduction of a judiciable enforceable duty to bargain collectively in services designated as essential and maintenance services may compel employers to conclude minimum services agreements. The extremely low number of services designated as maintenance services is a worrying reality and the solution is urgently required.
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  • Date Issued: 2018

Substantive fairness in dismissals based on operational requirements

  • Authors: Hokwana, Tina
  • Date: 2018
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30331 , vital:30931
  • Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
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  • Date Issued: 2018

Substantive fairness in the context of dismissal for team misconduct

  • Authors: Gcayi, Siziwe
  • Date: 2018
  • Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/22134 , vital:29852
  • Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
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  • Date Issued: 2018

The concept of equal pay for equal work

  • Authors: Dorfling, Jennifer Tracey
  • Date: 2018
  • Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/22005 , vital:29811
  • Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
  • Full Text:
  • Date Issued: 2018
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