The role of the trade union in post democratic South Africa
- Authors: Collins, Selwyn Charles
- Date: 2004
- Subjects: Labor unions -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11036 , http://hdl.handle.net/10948/354 , Labor unions -- South Africa , Labor policy -- South Africa
- Description: In South Africa, labour has played a central role in shaping the transition to democracy. It remained an open question as to whether labour could sustain it’s involvement during the period of consolidation after the first democratic elections. As was evident in other emerging democracies, economic liberalization often led to stagnation and high costs being imposed on workers, while weakening the state. South African trade unions thus faced formidable problems as they had to respond to rapid economic and industrial change. While being stubborn, South African trade unions remain adaptable enough to survive and grow into the 21st Century. In this dissertation, the writer examines the relevance of trade unions in contemporary South Africa and how they are coming to terms with the deregulated labour market, and the question of globalisation. We look at the emergence of new forms of collective bargaining, the growth of trade unions as partners in a changing workplace and the different ways trade unions are modernising themselves to attract new members. Labour when used as a collective force is capable of shaping democratization through the strategic use of power. Labour has the potential , through participation in negotiated compromises, to ensure that the costs of adjustments are not borne by workers alone. To this end, the South African trade union movement has developed innovative strategies and institutions.
- Full Text:
- Date Issued: 2004
- Authors: Collins, Selwyn Charles
- Date: 2004
- Subjects: Labor unions -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11036 , http://hdl.handle.net/10948/354 , Labor unions -- South Africa , Labor policy -- South Africa
- Description: In South Africa, labour has played a central role in shaping the transition to democracy. It remained an open question as to whether labour could sustain it’s involvement during the period of consolidation after the first democratic elections. As was evident in other emerging democracies, economic liberalization often led to stagnation and high costs being imposed on workers, while weakening the state. South African trade unions thus faced formidable problems as they had to respond to rapid economic and industrial change. While being stubborn, South African trade unions remain adaptable enough to survive and grow into the 21st Century. In this dissertation, the writer examines the relevance of trade unions in contemporary South Africa and how they are coming to terms with the deregulated labour market, and the question of globalisation. We look at the emergence of new forms of collective bargaining, the growth of trade unions as partners in a changing workplace and the different ways trade unions are modernising themselves to attract new members. Labour when used as a collective force is capable of shaping democratization through the strategic use of power. Labour has the potential , through participation in negotiated compromises, to ensure that the costs of adjustments are not borne by workers alone. To this end, the South African trade union movement has developed innovative strategies and institutions.
- Full Text:
- Date Issued: 2004
The unfair labour practice relating to promotion
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
Unfair discrimination in employment
- Gixana-Khambule, Bulelwa Judith
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
Constructive dismissal in labour law
- Van Loggerenberg, Johannes Jurgens
- Authors: Van Loggerenberg, Johannes Jurgens
- Date: 2003
- 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: vital:11054 , http://hdl.handle.net/10948/301 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: The history of constructive dismissals in South Africa imitated from the English law in 1986, when an employee successfully challenged the employer on this particular concept after an incident relating a forced resignation. From the literature it is clear that constructive dismissal, as we know it today, originated from our English counterparts. Being a relatively new concept, the South African labour laws caught on at a rapid pace. The leading case on which the South African authors leaned towards was the English case of Woods v WM Car Services (Peterborough). In South Africa constructive dismissals were given statutory force in unfair dismissal law and is defined as the coerced or forced termination of a contract of employment resultant in from the conduct of the employer. There are many forms in which constructive dismissals would postulate that could justify an employee to lay claim to constructive dismissal. Examples thereof are the amendment of the contract of employment, rude language and sexual harassment. It is eminent that certain elements should be present before an employee would have reasonable prospects of succeeding with such a claim. Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. It appears that the courts have taken a firm stance on coerced or forced resignation, in its various forms tantamount to breach of contact, that any sufficiently unreasonable conduct by an employer may justify that the employee to terminate services and lay claim to the fact that he had been constructively dismissed. It needs to be mentioned that the fact that the mere fact that the employer acted in an unreasonable manner would not suffice and it is up to the employee to prove how the conduct of the employer justified the employee to leave and claim that the employer’s conduct resulted in a material or fundamental beach of the employment contract. In dealing with the contingency of the concept of constructive dismissals it has been expressly provided for in numerous systems of labour law. As is seen herein, a constructive dismissal consists in the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. The act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified. Various authors and academics endeavoured to defined constructive dismissal and all had the same or at least some of the elements present, to justify constructive dismissal. The most glaring element being the termination of employment as a result of the any conduct that is tantamount to a breach going to the root of the relationship by the employer, that frustrated the relationship between the employer and the employee and rendered it irreparable. The employee resigns or repudiates the employment contract as a result of the employer normally not leaving the employee any other option but to resign. This can also be termed as coerced or forced resignations and are commonly better known as “constructive dismissal”. The employee is deemed to have been dismissed, even though it is the employee who terminated the employment contract. The most important element to mention is the employee terminated the employment contract, ie resigned yet this is regarded as a dismissal, it is however for the employee to first lay a claim at the proper authority and the employee must prove his / her allegation before it can be a constructive dismissal. As will become clear, that the onus of proof is on the employee to show that the termination of employment resulted from the conduct of the employer. Equally true as in all cases of constructive dismissal, including cases of sexual harassment, being a ground for constructive dismissal, the employee must prove that to remain in service would have been unbearable and intolerable. Sexual harassment is one of the most difficult forms of constructive dismissals, in many cases there are no witnesses and the employee either “suffers in silence or opt to place her dignity at stake to prove her case. It seems as though the test is to determine if the employer’s conduct evinced a deliberate and oppressive intention to have the employment terminated and left the employee with only one option that of resignation to protect her interests. Employees have a right to seek statutory relief and needs to be protected. If a coerced or forced resignation had taken place irrespective whether the employee resigned or not. It is against this back drop that constructive dismissals was given legality and are now recognized as one of the four forms of dismissals in terms of the Act.
- Full Text:
- Date Issued: 2003
- Authors: Van Loggerenberg, Johannes Jurgens
- Date: 2003
- 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: vital:11054 , http://hdl.handle.net/10948/301 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: The history of constructive dismissals in South Africa imitated from the English law in 1986, when an employee successfully challenged the employer on this particular concept after an incident relating a forced resignation. From the literature it is clear that constructive dismissal, as we know it today, originated from our English counterparts. Being a relatively new concept, the South African labour laws caught on at a rapid pace. The leading case on which the South African authors leaned towards was the English case of Woods v WM Car Services (Peterborough). In South Africa constructive dismissals were given statutory force in unfair dismissal law and is defined as the coerced or forced termination of a contract of employment resultant in from the conduct of the employer. There are many forms in which constructive dismissals would postulate that could justify an employee to lay claim to constructive dismissal. Examples thereof are the amendment of the contract of employment, rude language and sexual harassment. It is eminent that certain elements should be present before an employee would have reasonable prospects of succeeding with such a claim. Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. It appears that the courts have taken a firm stance on coerced or forced resignation, in its various forms tantamount to breach of contact, that any sufficiently unreasonable conduct by an employer may justify that the employee to terminate services and lay claim to the fact that he had been constructively dismissed. It needs to be mentioned that the fact that the mere fact that the employer acted in an unreasonable manner would not suffice and it is up to the employee to prove how the conduct of the employer justified the employee to leave and claim that the employer’s conduct resulted in a material or fundamental beach of the employment contract. In dealing with the contingency of the concept of constructive dismissals it has been expressly provided for in numerous systems of labour law. As is seen herein, a constructive dismissal consists in the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. The act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified. Various authors and academics endeavoured to defined constructive dismissal and all had the same or at least some of the elements present, to justify constructive dismissal. The most glaring element being the termination of employment as a result of the any conduct that is tantamount to a breach going to the root of the relationship by the employer, that frustrated the relationship between the employer and the employee and rendered it irreparable. The employee resigns or repudiates the employment contract as a result of the employer normally not leaving the employee any other option but to resign. This can also be termed as coerced or forced resignations and are commonly better known as “constructive dismissal”. The employee is deemed to have been dismissed, even though it is the employee who terminated the employment contract. The most important element to mention is the employee terminated the employment contract, ie resigned yet this is regarded as a dismissal, it is however for the employee to first lay a claim at the proper authority and the employee must prove his / her allegation before it can be a constructive dismissal. As will become clear, that the onus of proof is on the employee to show that the termination of employment resulted from the conduct of the employer. Equally true as in all cases of constructive dismissal, including cases of sexual harassment, being a ground for constructive dismissal, the employee must prove that to remain in service would have been unbearable and intolerable. Sexual harassment is one of the most difficult forms of constructive dismissals, in many cases there are no witnesses and the employee either “suffers in silence or opt to place her dignity at stake to prove her case. It seems as though the test is to determine if the employer’s conduct evinced a deliberate and oppressive intention to have the employment terminated and left the employee with only one option that of resignation to protect her interests. Employees have a right to seek statutory relief and needs to be protected. If a coerced or forced resignation had taken place irrespective whether the employee resigned or not. It is against this back drop that constructive dismissals was given legality and are now recognized as one of the four forms of dismissals in terms of the Act.
- Full Text:
- Date Issued: 2003
Labour law implications of organisational restructuring
- Authors: Grootboom, Linda Henry
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11041 , http://hdl.handle.net/10948/303 , Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Description: It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.
- Full Text:
- Date Issued: 2003
- Authors: Grootboom, Linda Henry
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11041 , http://hdl.handle.net/10948/303 , Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Description: It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.
- Full Text:
- Date Issued: 2003
Occupational medical examinations and labour law
- Authors: Lapere, Jan Noel Romain
- Date: 2003
- Subjects: Employees -- Medical examinations -- South Africa , Labor laws and legislation -- South Africa , Medical screening -- South Africa , Industrial hygiene -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11045 , http://hdl.handle.net/10948/302 , Employees -- Medical examinations -- South Africa , Labor laws and legislation -- South Africa , Medical screening -- South Africa , Industrial hygiene -- South Africa
- Description: South Africa’s Constitution and the Employment Equity Act have a major impact on the performance of medical examinations within the employment relationship. Health and safety statutes list a number of occupational medical examinations, which an employer must perform. Other legislation permits the execution of medical examinations. After listing the different statutory references to occupational medical examinations, this treatise examines under which conditions medical testing is required or permissible. The fairness of employment discrimination based on medical facts, employment conditions, social policy, distribution of employee benefits and inherent job requirement is analysed through a study of the legal texts, experts’ opinions and case studies. The particularities of the ethical and legal duties of the medical professional, performing the occupational medical examination, are also examined. Finally, a comprehensive analysis of the different forms of occupational medical examinations is compiled by combining legal and policy-related job requirements and is attached as an annexure. This is the practical result of the research in this treatise combined with the personal experience of the author.
- Full Text:
- Date Issued: 2003
- Authors: Lapere, Jan Noel Romain
- Date: 2003
- Subjects: Employees -- Medical examinations -- South Africa , Labor laws and legislation -- South Africa , Medical screening -- South Africa , Industrial hygiene -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11045 , http://hdl.handle.net/10948/302 , Employees -- Medical examinations -- South Africa , Labor laws and legislation -- South Africa , Medical screening -- South Africa , Industrial hygiene -- South Africa
- Description: South Africa’s Constitution and the Employment Equity Act have a major impact on the performance of medical examinations within the employment relationship. Health and safety statutes list a number of occupational medical examinations, which an employer must perform. Other legislation permits the execution of medical examinations. After listing the different statutory references to occupational medical examinations, this treatise examines under which conditions medical testing is required or permissible. The fairness of employment discrimination based on medical facts, employment conditions, social policy, distribution of employee benefits and inherent job requirement is analysed through a study of the legal texts, experts’ opinions and case studies. The particularities of the ethical and legal duties of the medical professional, performing the occupational medical examination, are also examined. Finally, a comprehensive analysis of the different forms of occupational medical examinations is compiled by combining legal and policy-related job requirements and is attached as an annexure. This is the practical result of the research in this treatise combined with the personal experience of the author.
- Full Text:
- Date Issued: 2003
Procedural fairness in unprotected strike dismissals
- Authors: Nel, Werner
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11049 , http://hdl.handle.net/10948/314 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Description: The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.
- Full Text:
- Date Issued: 2003
- Authors: Nel, Werner
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11049 , http://hdl.handle.net/10948/314 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Description: The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.
- Full Text:
- Date Issued: 2003
Provocation as a defence in English and South African criminal law
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
The application of the hearsay rule in labour law proceedings
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
The constitutional right to legal representation during disciplinary hearings and proceedings before the CCMA
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
The labour law consequences of a transfer of a business
- Authors: Abader, Mogamad Shahied
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
- Full Text:
- Date Issued: 2003
- Authors: Abader, Mogamad Shahied
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
- Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
- Full Text:
- Date Issued: 2003
The law relating to lock-outs
- Madokwe, De Villiers Badanile
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
The law relating to retrenchment
- Authors: Van Staden, Leon
- Date: 2003
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11055 , http://hdl.handle.net/10948/304 , Employees -- Dismissal of -- Law and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: Retrenchment, as a form of dismissal, is regulated by section 189 and 189A of the Labour Relations Act 1995. In order for a retrenchment to be fair, it must comply with both the substantive and procedural requirements stipulated in the Act. After an employee has proved the dismissal, the onus rests on the employer to comply with these two requirements by providing proof thereof. One of the most important procedural requirements that must be complied with by the employer is that the employer cannot merely make a decision to retrench. This decision may only be made once the employer, when contemplating a retrenchment, followed the lengthy consultation process as required in section 189. Recent amendments to section 189 introduced a distinction between a small and big employer and further between a large-scale and small-scale dismissal. If the employee is of the opinion that the employer did not comply with either the procedural or substantive requirements or both, he/she may refer such a dispute for conciliation and thereafter for arbitration or adjudication, according to a dispute resolution process contained in the Act, during which process certain remedies are available to the dismissed employee. The Labour Relations Act 1995 also introduced important amendments which have the effect that employees are allowed to, in certain circumstances, to strike over collective retrenchment disputes.
- Full Text:
- Date Issued: 2003
- Authors: Van Staden, Leon
- Date: 2003
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11055 , http://hdl.handle.net/10948/304 , Employees -- Dismissal of -- Law and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: Retrenchment, as a form of dismissal, is regulated by section 189 and 189A of the Labour Relations Act 1995. In order for a retrenchment to be fair, it must comply with both the substantive and procedural requirements stipulated in the Act. After an employee has proved the dismissal, the onus rests on the employer to comply with these two requirements by providing proof thereof. One of the most important procedural requirements that must be complied with by the employer is that the employer cannot merely make a decision to retrench. This decision may only be made once the employer, when contemplating a retrenchment, followed the lengthy consultation process as required in section 189. Recent amendments to section 189 introduced a distinction between a small and big employer and further between a large-scale and small-scale dismissal. If the employee is of the opinion that the employer did not comply with either the procedural or substantive requirements or both, he/she may refer such a dispute for conciliation and thereafter for arbitration or adjudication, according to a dispute resolution process contained in the Act, during which process certain remedies are available to the dismissed employee. The Labour Relations Act 1995 also introduced important amendments which have the effect that employees are allowed to, in certain circumstances, to strike over collective retrenchment disputes.
- Full Text:
- Date Issued: 2003
The legal implications of rugby injuries
- Authors: Viljoen, Erna
- Date: 2003
- Subjects: Rugby football injuries -- South Africa , Sports medicine -- Law and legislation -- South Africa , Rugby football players -- Legal status, laws, etc. -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11058 , http://hdl.handle.net/10948/332 , Rugby football injuries -- South Africa , Sports medicine -- Law and legislation -- South Africa , Rugby football players -- Legal status, laws, etc. -- South Africa
- Description: Sports law in South Africa is a field requiring exciting and intensive research. With so many sporting codes changing their status to professional sport, intensive research on the legal implications pertaining to each professional sporting code has also become necessary. Professional rugby in South Africa has grown into a multimillion rand industry. It is an industry whose role players need specialized legal advice on a multitude of issues. This dissertation addresses the legal issues arising out of the situation where a professional player is injured, during practice or a game, due to the intentional or negligent action of another. The medico-legal aspects of rugby, relating to causation and proof of injuries are an indispensable element of proving liability where rugby injuries are concerned. These aspects are crucial in assessing the criminal and delictual liability of players, coaches, referees, team physicians and even the union concerned. The problem of rugby violence, causing injury, is addressed by both the criminal law and the law of delict with the issue of consent being central to this discussion. Furthermore, the labour law implications can be far-reaching for both the player and the employer union due to the unique features of sport as an industry. All role players in professional rugby will have to cooperate with the legal community to ensure that a practical body of law is established in order to make rugby a safer sport for all concerned and to protect the professional player from unnecessary, incapacitating injury.
- Full Text:
- Date Issued: 2003
- Authors: Viljoen, Erna
- Date: 2003
- Subjects: Rugby football injuries -- South Africa , Sports medicine -- Law and legislation -- South Africa , Rugby football players -- Legal status, laws, etc. -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11058 , http://hdl.handle.net/10948/332 , Rugby football injuries -- South Africa , Sports medicine -- Law and legislation -- South Africa , Rugby football players -- Legal status, laws, etc. -- South Africa
- Description: Sports law in South Africa is a field requiring exciting and intensive research. With so many sporting codes changing their status to professional sport, intensive research on the legal implications pertaining to each professional sporting code has also become necessary. Professional rugby in South Africa has grown into a multimillion rand industry. It is an industry whose role players need specialized legal advice on a multitude of issues. This dissertation addresses the legal issues arising out of the situation where a professional player is injured, during practice or a game, due to the intentional or negligent action of another. The medico-legal aspects of rugby, relating to causation and proof of injuries are an indispensable element of proving liability where rugby injuries are concerned. These aspects are crucial in assessing the criminal and delictual liability of players, coaches, referees, team physicians and even the union concerned. The problem of rugby violence, causing injury, is addressed by both the criminal law and the law of delict with the issue of consent being central to this discussion. Furthermore, the labour law implications can be far-reaching for both the player and the employer union due to the unique features of sport as an industry. All role players in professional rugby will have to cooperate with the legal community to ensure that a practical body of law is established in order to make rugby a safer sport for all concerned and to protect the professional player from unnecessary, incapacitating injury.
- Full Text:
- Date Issued: 2003
The nature and potential effect of the Labour Relations Amendment Act 2002
- Authors: Conroy, Andrew Geddes
- Date: 2003
- Subjects: South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11037 , http://hdl.handle.net/10948/292 , South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Description: It took 18 months of intensive negotiation at the Millennium Labour Council, NEDLAC and the Labour Portfolio Committee before the Labour Relations Amendment Act of 20021 completed its passage through Parliament, taking effect on 1 August 2002. Fifty-seven amendments to specific sections of the Labour Relations Act2 and its schedules cure some obvious anomalies in the original version. It is further apparent that the legislature has taken cognisance of the observations by judges and arbitrators, who voiced their criticism in respect of certain aspects of the original "Act". The amended "Act"3 does appear to be a genuine commitment by both business and organised labour to improve efficiency in the labour market, to promote employment creation and to protect vulnerable workers. Improved dispute resolution mechanisms, enforcement mechanisms and the resurgence of an unfettered discretion in awarding compensation go some way to improving the application of the "Act". The most dramatic amendments have taken place in the law regulating retrenchments by large employers, inclusive of the controversial introduction of a right to strike after retrenchments of this nature have been effected, and the regulation of the transfer of a business as a going concern and its impact on workers. Critics indicate that business and organised labour have subscribed to the package of amendments despite respective reservations and due to certain time constraints. The nett result is a package of amendments that could be described as failing to address, in certain respects, or intentionally overlooking, areas of the "Act" that have traditionally been shown wanting in the past. In the individual employment law sphere specifically, the failure to address the meaning of "benefits" in the definition of unfair labour practices; to allocate a precise meaning to the concept of the transfer of a going concern; or to regulate the conduct of employers when transferring employees, remain some of the areas for concern. It appears that the legislature has decided that certain issues should be resolved by the Labour Court, and ultimately the Labour Appeal Court, on a case-by-case basis rather than by legislative intervention. Whilst this approach has merit, it does present problems to those seeking to apply the provisions of the amended "Act" 5 in everyday practice. On the whole, the amendments do not, nor were they designed to, mark a major shift in the government's labour market policy. The changes clearly focus on correcting and clarifying sections of the "Act", which have resulted in unintended consequences, or lost touch with commercial reality, over the past seven years.
- Full Text:
- Date Issued: 2003
- Authors: Conroy, Andrew Geddes
- Date: 2003
- Subjects: South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11037 , http://hdl.handle.net/10948/292 , South Africa. Labour Relations Amendment Act 2002 , Labor laws and legislation -- South Africa
- Description: It took 18 months of intensive negotiation at the Millennium Labour Council, NEDLAC and the Labour Portfolio Committee before the Labour Relations Amendment Act of 20021 completed its passage through Parliament, taking effect on 1 August 2002. Fifty-seven amendments to specific sections of the Labour Relations Act2 and its schedules cure some obvious anomalies in the original version. It is further apparent that the legislature has taken cognisance of the observations by judges and arbitrators, who voiced their criticism in respect of certain aspects of the original "Act". The amended "Act"3 does appear to be a genuine commitment by both business and organised labour to improve efficiency in the labour market, to promote employment creation and to protect vulnerable workers. Improved dispute resolution mechanisms, enforcement mechanisms and the resurgence of an unfettered discretion in awarding compensation go some way to improving the application of the "Act". The most dramatic amendments have taken place in the law regulating retrenchments by large employers, inclusive of the controversial introduction of a right to strike after retrenchments of this nature have been effected, and the regulation of the transfer of a business as a going concern and its impact on workers. Critics indicate that business and organised labour have subscribed to the package of amendments despite respective reservations and due to certain time constraints. The nett result is a package of amendments that could be described as failing to address, in certain respects, or intentionally overlooking, areas of the "Act" that have traditionally been shown wanting in the past. In the individual employment law sphere specifically, the failure to address the meaning of "benefits" in the definition of unfair labour practices; to allocate a precise meaning to the concept of the transfer of a going concern; or to regulate the conduct of employers when transferring employees, remain some of the areas for concern. It appears that the legislature has decided that certain issues should be resolved by the Labour Court, and ultimately the Labour Appeal Court, on a case-by-case basis rather than by legislative intervention. Whilst this approach has merit, it does present problems to those seeking to apply the provisions of the amended "Act" 5 in everyday practice. On the whole, the amendments do not, nor were they designed to, mark a major shift in the government's labour market policy. The changes clearly focus on correcting and clarifying sections of the "Act", which have resulted in unintended consequences, or lost touch with commercial reality, over the past seven years.
- Full Text:
- Date Issued: 2003
The regulation of domain name disputes in South Africa
- Authors: Nyachowe, Pasno N
- Date: 2003
- Subjects: Trademarks -- Law and legislation -- South Africa , Internet domain names -- Law and legislation , Internet domain names -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11050 , http://hdl.handle.net/10948/351 , Trademarks -- Law and legislation -- South Africa , Internet domain names -- Law and legislation , Internet domain names -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: This treatise provides an overview of the procedures for the registration, regulation and protection of Internet domain names. An analysis of legal rules applicable to domain names and problems related to the protection of domain names in South Africa, United State, United Kingdom and internationally is undertaken. The problems includes cybersquatting, misuse of personal names, reverse domain hijacking, misuse of meta tags and keywords. The treatise established possible solutions applicable to South Africa by investigating how other countries have dealt with such problems, and further investigated the extent to which South African legislation is suited to deal with such problems. An investigation of the regulation in terms of the Electronic Communications and Transactions Act 25 of 2002 is briefly attempted, and proposals for the future on the South African domain name system suggested.
- Full Text:
- Date Issued: 2003
- Authors: Nyachowe, Pasno N
- Date: 2003
- Subjects: Trademarks -- Law and legislation -- South Africa , Internet domain names -- Law and legislation , Internet domain names -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11050 , http://hdl.handle.net/10948/351 , Trademarks -- Law and legislation -- South Africa , Internet domain names -- Law and legislation , Internet domain names -- Law and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: This treatise provides an overview of the procedures for the registration, regulation and protection of Internet domain names. An analysis of legal rules applicable to domain names and problems related to the protection of domain names in South Africa, United State, United Kingdom and internationally is undertaken. The problems includes cybersquatting, misuse of personal names, reverse domain hijacking, misuse of meta tags and keywords. The treatise established possible solutions applicable to South Africa by investigating how other countries have dealt with such problems, and further investigated the extent to which South African legislation is suited to deal with such problems. An investigation of the regulation in terms of the Electronic Communications and Transactions Act 25 of 2002 is briefly attempted, and proposals for the future on the South African domain name system suggested.
- Full Text:
- Date Issued: 2003
The validity of humanitarian intervention under international law
- Authors: Beneke, Méchelle
- Date: 2003
- Subjects: Humanitarian intervention , Intervention (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11056 , http://hdl.handle.net/10948/305 , Humanitarian intervention , Intervention (International law)
- Description: The study which follows considers the current approach to State sovereignty, use of force, and human rights, in order to determine the balance which exists between these concepts. A shift in this balance determines the direction of development of the concept of ‘humanitarian intervention.’ The investigation establishes that State sovereignty and certain human rights are at a point where they are viewed as equal and competing interests in the international arena. This leads to the question of whether or not the concept of humanitarian intervention has found any acceptance in international law. It is determined that the right to intervention rests exclusively with the United Nations Security Council. There are, however, obstacles to United Nations action, which necessitate either taking action to remove the obstacles, or finding an alternative to United Nations authorized action. The alternatives provided are unilateral interventions by regional organizations, groups of States or individual States, with interventions by regional organizations being favoured. The study further discusses the requirements which would make unilateral action more acceptable. These same requirements provide a standard against which the United Nations can measure its duty to intervene. Such an investigation was done by the International Commission on Intervention and State Sovereignty, and a synopsis of its Report and Recommendations are included. Finally, the question of responsibility is addressed. State and individual responsibility for two separate types of action are considered. The responsibility of States and individuals for initiating an intervention is considered under the topic of the crime of aggression. The responsibility of States and individual for exceeding the mandate of a legitimate intervention is considered under the heading of war crimes.
- Full Text:
- Date Issued: 2003
- Authors: Beneke, Méchelle
- Date: 2003
- Subjects: Humanitarian intervention , Intervention (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11056 , http://hdl.handle.net/10948/305 , Humanitarian intervention , Intervention (International law)
- Description: The study which follows considers the current approach to State sovereignty, use of force, and human rights, in order to determine the balance which exists between these concepts. A shift in this balance determines the direction of development of the concept of ‘humanitarian intervention.’ The investigation establishes that State sovereignty and certain human rights are at a point where they are viewed as equal and competing interests in the international arena. This leads to the question of whether or not the concept of humanitarian intervention has found any acceptance in international law. It is determined that the right to intervention rests exclusively with the United Nations Security Council. There are, however, obstacles to United Nations action, which necessitate either taking action to remove the obstacles, or finding an alternative to United Nations authorized action. The alternatives provided are unilateral interventions by regional organizations, groups of States or individual States, with interventions by regional organizations being favoured. The study further discusses the requirements which would make unilateral action more acceptable. These same requirements provide a standard against which the United Nations can measure its duty to intervene. Such an investigation was done by the International Commission on Intervention and State Sovereignty, and a synopsis of its Report and Recommendations are included. Finally, the question of responsibility is addressed. State and individual responsibility for two separate types of action are considered. The responsibility of States and individuals for initiating an intervention is considered under the topic of the crime of aggression. The responsibility of States and individual for exceeding the mandate of a legitimate intervention is considered under the heading of war crimes.
- Full Text:
- Date Issued: 2003
The concurrent jurisdiction of the Labour Court and the High Court
- Authors: Wagener, Pieter Cornelius
- Date: 2002
- Subjects: South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11051 , http://hdl.handle.net/10948/286 , South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Description: An overview is given of the difficulties surrounding the concurrent jurisdiction of the Labour Court and High Court The main categories of the jurisdictional dispute are identified and systemised. The main branches are those of statutory overlap and interpretation of statutes. Statutory overlap concerns matters remaining from the industrial court era, urgent applications, delict and law of contract. Statutory interpretation mainly involves the interpretation of provisions in the Bill of Rights of the Constitution. An overview of the principles of jurisdiction with respect to the different courts, as well as a brief historical review of the development of such jurisdiction is given. Particular attention is given to the role of fundamental rights in the Constitution. Broad principles are identified whereby the difficulties may be addressed.
- Full Text:
- Date Issued: 2002
- Authors: Wagener, Pieter Cornelius
- Date: 2002
- Subjects: South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11051 , http://hdl.handle.net/10948/286 , South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Description: An overview is given of the difficulties surrounding the concurrent jurisdiction of the Labour Court and High Court The main categories of the jurisdictional dispute are identified and systemised. The main branches are those of statutory overlap and interpretation of statutes. Statutory overlap concerns matters remaining from the industrial court era, urgent applications, delict and law of contract. Statutory interpretation mainly involves the interpretation of provisions in the Bill of Rights of the Constitution. An overview of the principles of jurisdiction with respect to the different courts, as well as a brief historical review of the development of such jurisdiction is given. Particular attention is given to the role of fundamental rights in the Constitution. Broad principles are identified whereby the difficulties may be addressed.
- Full Text:
- Date Issued: 2002
The variation of conditions of employment
- Authors: Horo, Lindile
- Date: 2002
- Subjects: Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11043 , http://hdl.handle.net/10948/282 , Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Description: This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
- Full Text:
- Date Issued: 2002
- Authors: Horo, Lindile
- Date: 2002
- Subjects: Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11043 , http://hdl.handle.net/10948/282 , Labor laws and legislation -- South Africa , Labor disputes -- South Africa , Collective bargaining -- South Africa
- Description: This paper seeks to bring clarity to a number of issues that arise from a process resulting from the unilateral variation of terms and conditions of employment and the conflict management and dispute resolution processes. The variation of employment terms particularly when it is driven by one party to the employment relationship can cause instability, insecurity, confusion and uncertainty to the parties involved. The nature of work is not constant and therefore changes are inevitable. This then has an effect of bringing disorder not only to the employer-employee relationship but also to the labour relations balance. In many instances and depending on whether it is the employer or employee who propagates the changes, the reasons to alter the conditions are different. Employers usually cite operational or economic reasons that are meant for the survival of the business as the need to make the changes. From the employees’ side the changes are necessitated by reasons aimed at a move from protecting the favourable employment conditions already acquired to improving them or attaining more. In the event that the parties to the employment relationship do not agree to the changes proposed and implemented, a dispute usually arises. This results from the failure of a consultation process, negotiations, persuasion or collective bargaining in general. In essence such a dispute arises from absence of consent to the changes. The failure of a bargaining system requires the process to assume a new nature. The dispute resolution systems and the conflict management systems follow as both the appropriate and necessary steps. The bargaining power together with the intervention of the third party is at the centre of this phase. The parties, depending on the nature of the dispute, the conditions that iv are changed and who are affected by the changes, have choices on what dispute resolution mechanisms to employ. The choice made has a huge impact on both the outcome required in the form of recourse, how the dispute will be resolved or how the conflict will be managed. There is legislative intervention with regards to the resolution of the conflictual scenarios that arise from disputes on unilateral variation of terms and conditions of employment. There are also non-statutory measures available to the parties. The choices are vast as to when can the variation take place, the reasons for the changes, the parties involved, the possible dispute resolution mechanisms, what can be varied and whether the unilateral implementation can be viewed as fair.
- Full Text:
- Date Issued: 2002
The constitutional right of access to social security
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001