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A comparative study on the effectiveness of minimum service agreements within the public service

  • Authors: De Bruin, Frederik Johannes
  • Date: 2013
  • Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
  • Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
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  • Date Issued: 2013

A critical analysis of the deductibility of audit fees

  • Authors: Hattingh, Leon
  • Date: 2013
  • Subjects: Auditing -- Fees , Tax deductions
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
  • Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
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  • Date Issued: 2013

Accountability of armed opposition groups in Somalia

  • Authors: Chingeni, Janet Chisomo
  • Date: 2013
  • Subjects: Armed Forces , Civil war -- Somalia
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10294 , http://hdl.handle.net/10948/d1020779
  • Description: The purpose of IHL is to protect civilians and provide obligations that parties to the conflict are to adhere to. These obligations in case of a non-international armed conflict emanate from Common Article 3, Additional Protocol II and customary international humanitarian law. The reason for the imposition of these obligations on the parties to the conflict is for the need to protect the civilian population against the effects of hostilities which mostly are women and children. As the conflict in Somalia has gone on for too long, IHL plays an important role in protecting civilians. As the Geneva Conventions regulate armed conflicts together with its Additional Protocols they set out the requirements for the treatment of those not taking part in hostilities. In direct contravention of the Geneva Conventions by the parties to the conflict, the persons not taking part in hostilities have been the victims of attacks by armed groups. Even though armed groups have obligations, breaches have continued to occur resulting in impunity and perpetrators of violence have gone unpunished and there is need to close the accountability gap in respect of holding armed groups accountable in Somalia. The aim of this research is to assess how armed groups in Somalia can be held accountable for the atrocities they have committed. In an attempt to close the gap the researcher discusses the obligations that armed groups have, and when these obligations are breached many result in criminal accountability in respect of war crimes. It is also stated in the research that a State has an obligation to prosecute those in breach of IHL obligations. For prosecution to be possible in Somalia there is need for the Federal government of Somalia to adopt new legislation to enforce the justice system in the attempt to hold armed groups accountable and where possible to also utilise available courts as it is difficult and expensive to establish a tribunal. To end impunity armed groups are to be held accountable.
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  • Date Issued: 2013

Aspects of constructive dismissal

  • Authors: Diedericks, Shaun Sylvester
  • Date: 2013
  • Subjects: Labor courts , Employees -- Dismissal of
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10269 , http://hdl.handle.net/10948/d1011641 , Labor courts , Employees -- Dismissal of
  • Description: Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.
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  • Date Issued: 2013

Establishing a fair sanction in misconduct cases

  • Authors: Grigor, Francois
  • Date: 2013
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
  • Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
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  • Date Issued: 2013

Euthanasia: a modern legal perspective

  • Authors: Welgemoed, Marc
  • Date: 2013
  • Subjects: Right to die -- Law and legislation -- South Africa Terminally ill -- Legal status, laws, etc. -- South Africa , Euthanasia -- South Africa Assisted suicide -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/45849 , vital:39222
  • Description: Euthanasia and assisted suicide is currently illegal in South Africa and amounts to murder. Despite the fact that South Africa has a Constitution, including a Bill of Rights, as well as strong lobbying in favour of the legalization of euthanasia, no legal changes have been effected. Other issues closely intricated with euthanasia, like the so-called “living wills” and palliative care, where an increase of medication can possibly shorten the lifespan of a patient (“double-effect”-medication), are also problematic at the moment. The South African Law Commission has made recommendations regarding the legalization of euthanasia and assisted suicide, as well as the validity of living wills and “double-effect” palliative care practices as far back as 1997, but to present none of the recommendations had been adhered to. The only indication in favour of the toleration of euthanasia and assisted suicide is that the courts have handed down lenient sentences in cases of this nature. In this treatise the legal position in South Africa is compared to that applicable in the Netherlands and in Canada in an attempt to see whether or not South Africa can learn something from these countries as far as the development of its own legal system, relating to euthanasia, is concerned. The Termination of End of Life Decisions and Assisted Suicide Act is applicable in the Netherlands and legalizes euthanasia and assisted suicide subject to strict requirements being complied with. Although euthanasia is illegal in Canada, the courts have recently shown a noteworthy human rights approach that almost resulted in the legal position in the province of British Columbia being changed. It will be submitted that South Africa must take thorough note of these two foreign legal systems, as well as of the recommendations of the South African Law Commission and the Bill of Rights, especially the rights to life, dignity, equality and freedom and security of the person.
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  • Date Issued: 2013

Human rights implications of the compulsory HIV/AIDS testing policy: a critical appraisal of the law and practice in South Africa, Uganda and Canada

  • Authors: Chiringa, Kudakwashe E M
  • Date: 2013
  • Subjects: HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11106 , http://hdl.handle.net/10353/d1017298 , HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
  • Description: HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.
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  • Date Issued: 2013

Misconduct relating to fraud and corruption in the public service

  • Authors: Madikane, Mpumelelo Patrick
  • Date: 2013
  • Subjects: Civil service -- South Africa , Civil service -- Corrupt practices
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10274 , http://hdl.handle.net/10948/d1018673
  • Description: In an article, “Corruption and Governance Challenges: The South African Experience”,1 the Public Protector commented that corruption and good governance sit at the opposite ends of the spectrum. While good governance represents the ideal for governments, corporations and nations globally, corruption is a scourge that decent people, organisations and governments seek to eradicate. In the simplest of terms, corruption involves the abuse of power for private gain.The Public Protector further stated that it should be a concern to everybody that in post-independence Africa, certainly in South Africa, the accumulation of riches (in most cases, very sudden) is venerated even in the absence of visible means of accumulating the riches. South Africa has battled with corruption since the days of apartheid. Post-apartheid South Africa is a more open society and more opportunities have been created for detecting, exposing and prosecuting corruption. South Africa‟s approach to corruption is multipronged. The main pillars according to the Public Protector are the law, anti-corruption agencies, and public mobilisation.This studyhas attempted to attend to the challenges of managing misconduct relating to fraud and corruption that appear to weaken our democracy. Fraud and corruption is a complex phenomenon that requires managers and supervisors to possess a specialist technical knowledge in order to be effective in punishing those that are involved in this type of misconduct. The tendency currently is for the managers and supervisors to place suspected corrupt employees on a prolonged pre-cautionary suspension for a period that is not supported by law. This of course weakens the employer‟s case as they tend to rely on the outcomes of the proceedings in the criminal procedure before they institute disciplinary action against such culprits. Workers could be criminally prosecuted for this type of misconduct in terms of the provisions of the Prevention and Combating of the Corrupt Activities Act. Employers always enjoy the right to criminally prosecute workers who have committed acts of fraud or corruption but that must go concurrently with the institution of the disciplinary proceedings in terms of the collective agreement, if there is any. This study will show that the act of misconduct relating to fraud and corruption is a complex phenomenon that poses a threat to the global security. This study also takes a closer view of the provisions of international instruments and institutions such as the United Nations and International Labour Organisation. It further, does a detailed analysis of the provisions in other foreign jurisdiction like Canada. This is consistent with the provisions of the Bill of Rights as enshrined in the Constitution:Section 39(1) of the Constitution of the Republic of South Africa demands that when interpreting the Bill of Rights, a court, tribunal or forum: a. Must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. Must consider international law; and c. May consider foreign law. Section 1 of the Labour Relations Act, states that the primary objects of the Act are: (a) To give effect and regulate the fundamental rights conferred by section 23 of the Constitution; (b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Section 3 of the LRA further stipulates that any person applying this Act must interpret its provisions:(a) To give effect to its primary objects; (b) in compliance with the Constitution; (c) in compliance with the public international law obligations of the Republic.This treatise further shows the importance of the Constitutional values and principles that govern the Public Administration in terms of Chapter 10, section 195.Of importance the elements of fraud and corruption are discussed in this study.This study also gives a detailed analysis of the case laws that give guidance on how best to deal with and successfully punish employees involved in misconduct relating to fraud and corruption.
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  • Date Issued: 2013

Opening up global food trade to developing countries: an evaluation of the World Trade Organisation's agreement on sanitary and phytosanitary measure

  • Authors: Nyatsanza, Sharon
  • Date: 2013
  • Subjects: World Trade Organization , Food contamination , Food handling -- Safety measures
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/27413 , vital:67294
  • Description: Food safety and consumer protection has been a major concern of regulators since the 12th century. Sanitary and Phytosanitary (SPS) measures were therefore introduced to protect human, animal and plant safety. With the expansion of international trade came the increase in the use of SPS measures. However these increases in the use of SPS measures were accompanied with their misuse for protectionist purposes. SPS measures which had been created for legitimate purposes quickly became significant barriers to trade. The World Trade Organisation (WTO) adopted the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) as a mechanism to regulate the use of SPS measures and avoid their potential use as protectionist tools. Trade liberalization and market access has been a primary aim of the WTO, therefore in principle the SPS Agreement is supposed to open up global food trade for all countries.Apart from opening up global food trade, another purpose of the SPS Agreement was to protect the developing countries, accommodate their special needs and in turn promote their economic development. Developing countries are heavily dependent on global food trade for their economic development. However developing states can only benefit from global food trade if they comply with SPS standards set in the importing countries. Considering their reliance on the agro – food sector the economic development of developing states is heavily reliant on the successful implementation of the SPS Agreement. According the SPS Agreement must avoid the use of illegitimate SPS measures and promote market access. It is therefore crucial that the SPS Agreement be analysed to determine whether its text, application and or interpretation satisfies the objective of opening up global food trade especially for developing states. The objective is to show the significance of a regulatory framework that is as much as possible devoid of any loopholes or shortcomings, which could frustrate the developmental interests. Inappropriate accommodation of developmental interests in the SPS Agreement could have adverse impacts on the development prospectus of developing countries. , Thesis (LLM) -- Faculty of Law, 2013
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  • Date Issued: 2013

Principles of South African prison law and proposals for their implementation

  • Authors: Hornigold, Angus Lloyd
  • Date: 2013
  • Subjects: Prisons -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Doctoral , LLD
  • Identifier: vital:10297 , http://hdl.handle.net/10948/d1021033
  • Description: There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
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  • Date Issued: 2013

Pursuing justice in post conflict situations in Africa

  • Authors: Ndirangu, Stella Wambui
  • Date: 2013
  • Subjects: Restorative justice -- Africa , Justice, Administration of -- Africa , Transitional justice
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10293 , http://hdl.handle.net/10948/d1020647
  • Description: Post conflict justice is a concept that has in the last two decades gained notoriety and support across the world. The commitment by states to fight impunity by embracing accountability measures has increasingly gained support. This however, was not always the case. Before the 1980s the approach by most of the world was to turn a blind eye to serious violations committed during wars, insurgencies and serious conflict. This was done in the name of respecting state sovereignty, where other states were required to respect the conflict state by not intervening irrespective of egregious violations being committed to mankind. The tide eventually changed and many states have adopted numerous instruments as a sign of their commitment to fight impunity and bring accountability to the perpetrators of serious conflict. African states embraced this development, in 1998 during the Rome conference where the Rome Statute for the International Criminal Court was adopted. African states participated in large numbers during the negotiations. Subsequently, African states signed and adopted the Statute overwhelmingly. To date, 33 African States have ratified the Rome Statute making Africa the most represented region in the Rome Statute system. With Africa's share of countless conflicts, where serious human rights violations have been violated, post conflict justice is increasingly a reality in Africa. The application of post conflict justice is an emerging and ever evolving field in Africa. The implementation of post conflict justice has been the center of contested debates. These debates have in the recent past become more pronounced especially where international intervention has been applied in assisting African post conflict societies to deal with the past and bring accountability. The impact that the accountability mechanisms play in restoring a post conflict society has been overshadowed by these debates. This study therefore seeks to provide a balanced discussion on the role that the accountability mechanisms can play in African post conflict societies. The study gives an overview of the evolution of post conflict justice and also looks into the different post conflict justice approaches adopted by African countries and their potential role in accountability and societal healing. The empirical cases of South Africa and Kenya are analysed in the study as practical examples of the application of post conflict justice approaches. The impact of the accountability mechanisms adopted is also discussed. The unique role that the African Union plays in fighting impunity in the continent is also discussed and the impact of positions taken by the continental body on accountability in post conflict countries is analysed. In the end the study seeks to establish the growing pattern in Africa in dealing with post conflict situations and recommendations are made in the final chapter on how to improve the general approach by Africa to eradicate the culture of impunity for serious crimes committed in the continent.
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  • Date Issued: 2013

Statutory regulation of temporary employment services

  • Authors: Pauw, Julius Bremer
  • Date: 2013
  • Subjects: Temporary help services -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Temporary employment -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10245 , http://hdl.handle.net/10948/d1019715
  • Description: This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.
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  • Date Issued: 2013

Strikes in the transport sector

  • Authors: Grigor, Marius Hugo
  • Date: 2013
  • Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
  • Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
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  • Date Issued: 2013

Suspension as an unfair labour practice

  • Authors: Share, Hanli
  • Date: 2013
  • Subjects: Labor laws and legislation , Unfair labor practices
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10273 , http://hdl.handle.net/10948/d1018655
  • Description: Suspension as a form of an unfair labour practice can be of two categories. There could be a situation where an employer suspends an employee as a disciplinary sanction after an employee has committed an act of misconduct. This is often referred to as a punitive suspension. An employer may also suspend an employee pending a disciplinary hearing. In this case the employee has not yet been found guilty because the investigation into the alleged misconduct is still on going. The employee may be suspended as a way of preventing him from interfering with the investigation process into the alleged misconduct. This form of suspension is often referred to as a preventative suspension. It is very important to note the distinction between the two forms of suspension because the processes that are followed when effecting them are different. Failure to acknowledge the difference might result in a situation where an employer might be effecting a preventative suspension but the consequences might be that of a punitive suspension and end-up being an unfair labour practice. Suspension is a disciplinary measure, and it is important to note that in the event that the employer elects to implement a suspension, its conduct must be disciplinary in nature and intent and should be corrective rather than punitive.Unlike dismissals where the Code of Good Practice of the Labour Relations Act, No 66 of 1995 provides guidance on what constitutes procedural and substantive fairness, there are no guidelines on what constitutes procedural and substantive fairness when it comes to suspensions. This has resulted in a situation where suspension is treated as a minor aspect of disciplinary measures that is frequently abused as it is often on full remuneration. This, however, does not allow an employer to suspend employees at will, without merit and without following proper procedure. Suspension could have severe adverse effects on employees and often affects their reputation, goodwill, human dignity, self-esteem and the right to meaningful association and work. It is for this reason that suspension must be effected in a way that is procedurally and substantively fair.Punitive suspension is implemented as a sanction and is often without pay and is a last resort prior to dismissal. Preventative suspension occurs prior to a disciplinary hearing, with the aim of temporarily removing the employee from the workplace to enable the employer to conduct a proper investigation without interference. Unfortunately preventative suspensions are often abused by employers in that they protract over extended periods of time, making the preventative suspension punitive in nature, to the extent that the courts have been forced to intervene and lay down stringent requirements that must be met in order to prevent such abuse.There are various requirements for suspension which range from the intention of the employer, the audi alteram partem rule, sufficient reasons prior to suspension to period of suspension. Most employment relationships are governed by disciplinary codes or collective agreements, which often place limitations on the concept of suspension. Some codes provide for special leave at the option of the employee, which the employer often abuses instead of utilizing the preventative suspension option. This, however, is more often than not to suit a political agenda.In the event of non-compliance by an employer, an employee is not left remediless. An unfair suspension constitutes an unfair labour practice and an employee has the right to refer such dispute to the relevant labour forums like the CCMA or the relevant bargaining council. Employees are cautioned not to refer their disputes to the Labour Court for final relief, but rather to only approach the courts for urgent interim relief, like interdicts.
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  • Date Issued: 2013

Suspension in the disciplinary process

  • Authors: Grigor, Charles Miller
  • Date: 2013
  • Subjects: Employees -- Suspension , Labor discipline
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
  • Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
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  • Date Issued: 2013

The criminalization of HIV/AIDS : a comparative analysis

  • Authors: Myburgh, Rene
  • Date: 2013
  • Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sexually transmitted diseases -- Law and legislation -- South Africa. , HIV-positive persons -- Legal status, laws, etc. -- South Africa , Liability (Law) -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10185 , http://hdl.handle.net/10948/d1020754
  • Description: The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.
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  • Date Issued: 2013

The criterion of justifiability as a ground for review following Sidumo v Rustenburg Platinum Mines (2007) 12 BLLR 1097 (CC)

  • Authors: Fischat, Herbert Robert James Falconer
  • Date: 2013
  • Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
  • Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
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  • Date Issued: 2013

The effect of labour legislation in the promotion and integration of persons with disabilities in the labour market

  • Authors: Cole, Elsabe Cynthia
  • Date: 2013
  • Subjects: People with disabilities -- Legal status, laws, etc. -- South Africa , People with disabilities -- Employment , Labour market
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:9300 , http://hdl.handle.net/10948/d1014669
  • Description: It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.
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  • Date Issued: 2013

The employment relationship of employees employed in terms of section 56 and 57 in the local government sector

  • Authors: Kruger, Willem Adriaan
  • Date: 2013
  • Subjects: Employees -- South Africa , Local government
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
  • Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
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  • Date Issued: 2013

The impact of minimum sentence legislation on South African criminal law

  • Authors: Du Plessis, Jan Andriaan
  • Date: 2013
  • Subjects: Sentences (Criminal procedure) -- South Africa , Capital punishment -- South Africa , Human rights -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10182 , http://hdl.handle.net/10948/d1020037x
  • Description: The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
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  • Date Issued: 2013
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