The distinction between a contract of employment and a contract with an independent contractor
- Authors: Slater, Henry John
- Date: 2001
- Subjects: Labor contract -- South Africa , Independent contractors -- South Africa , Contracts -- South Africa -- Cases , Liability (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11060 , http://hdl.handle.net/10948/276 , Labor contract -- South Africa , Independent contractors -- South Africa , Contracts -- South Africa -- Cases , Liability (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.
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- Date Issued: 2001
- Authors: Slater, Henry John
- Date: 2001
- Subjects: Labor contract -- South Africa , Independent contractors -- South Africa , Contracts -- South Africa -- Cases , Liability (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11060 , http://hdl.handle.net/10948/276 , Labor contract -- South Africa , Independent contractors -- South Africa , Contracts -- South Africa -- Cases , Liability (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.
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- Date Issued: 2001
The right of the HIV/AIDS patient to treatment
- Authors: Hoffmann, Toinette
- Date: 2001
- Subjects: AIDS (Disease) -- Patients -- Legal status, Laws, etc. -- South Africa , Hiv-positive Persons -- Legal status, Laws, etc. -- South Africa , AIDS (Disease) -- Government policy -- South Africa , AIDS (Disease) -- Treatment , AIDS (Disease) -- Social aspects
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11042 , http://hdl.handle.net/10948/277 , AIDS (Disease) -- Patients -- Legal status, Laws, etc. -- South Africa , Hiv-positive Persons -- Legal status, Laws, etc. -- South Africa , AIDS (Disease) -- Government policy -- South Africa , AIDS (Disease) -- Treatment , AIDS (Disease) -- Social aspects
- Description: The objective of this treatise is to establish whether a right to social security exists in South Africa, which would entitle HIV positive persons in South Africa citizens to medical care. A study was made of various articles in journals and on the Internet to determine the South African government's policy on a right to social security and to providing medical treatment. It was found that South Africa lacks an integrated, holistic approach to social security and does not guarantee the right to social security, merely the right to have access to social security. The same was found with the right to medical care. Although there seems to be a general right to medical care which extends to and includes HIV-positive patients, the state merely guarantees the right to apply for medical treatment but does not guarantee the granting thereof. It is submitted that the Department of Health's refusal to implement a vertical transmission prevention programme and the failure to offer treatment as an alternative, for whatever reason, is "penny wise and pound foolish". In the long run more money is spent dealing with pediatric AIDS. It was further found that although the government attempted to lay a groundwork with the formulation and acceptance of the national AIDS plan, the successful implementation thereof is seriously hindered due to the lack of inter- and intra-departmental collaboration, essential health services and funding.
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- Date Issued: 2001
- Authors: Hoffmann, Toinette
- Date: 2001
- Subjects: AIDS (Disease) -- Patients -- Legal status, Laws, etc. -- South Africa , Hiv-positive Persons -- Legal status, Laws, etc. -- South Africa , AIDS (Disease) -- Government policy -- South Africa , AIDS (Disease) -- Treatment , AIDS (Disease) -- Social aspects
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11042 , http://hdl.handle.net/10948/277 , AIDS (Disease) -- Patients -- Legal status, Laws, etc. -- South Africa , Hiv-positive Persons -- Legal status, Laws, etc. -- South Africa , AIDS (Disease) -- Government policy -- South Africa , AIDS (Disease) -- Treatment , AIDS (Disease) -- Social aspects
- Description: The objective of this treatise is to establish whether a right to social security exists in South Africa, which would entitle HIV positive persons in South Africa citizens to medical care. A study was made of various articles in journals and on the Internet to determine the South African government's policy on a right to social security and to providing medical treatment. It was found that South Africa lacks an integrated, holistic approach to social security and does not guarantee the right to social security, merely the right to have access to social security. The same was found with the right to medical care. Although there seems to be a general right to medical care which extends to and includes HIV-positive patients, the state merely guarantees the right to apply for medical treatment but does not guarantee the granting thereof. It is submitted that the Department of Health's refusal to implement a vertical transmission prevention programme and the failure to offer treatment as an alternative, for whatever reason, is "penny wise and pound foolish". In the long run more money is spent dealing with pediatric AIDS. It was further found that although the government attempted to lay a groundwork with the formulation and acceptance of the national AIDS plan, the successful implementation thereof is seriously hindered due to the lack of inter- and intra-departmental collaboration, essential health services and funding.
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- Date Issued: 2001
Corruption, state capture and the betrayal of South Africa’s vulnerable
- Authors: Erasmus, Deon
- Subjects: Political corruption -- South Africa , Business enterprises -- Corrupt practices -- South Africa , f-sa
- Language: English
- Type: text , Lectures
- Identifier: http://hdl.handle.net/10948/53199 , vital:45037
- Description: The term state capture was first defined in a World Bank report on corruption in eastern Europe and central Asia in 2003. Hellman, Jones and Kaufmann (2000) point out in the report that some firms in transition economies were able to shape the rules of the game to their own advantage at a considerable social cost by creating a “capture economy.”
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- Authors: Erasmus, Deon
- Subjects: Political corruption -- South Africa , Business enterprises -- Corrupt practices -- South Africa , f-sa
- Language: English
- Type: text , Lectures
- Identifier: http://hdl.handle.net/10948/53199 , vital:45037
- Description: The term state capture was first defined in a World Bank report on corruption in eastern Europe and central Asia in 2003. Hellman, Jones and Kaufmann (2000) point out in the report that some firms in transition economies were able to shape the rules of the game to their own advantage at a considerable social cost by creating a “capture economy.”
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Remedial interventions in public procurement processes: an appraisal of recent appellate jurisprudence in search of principles
- Authors: Osode, Patrick
- Language: English
- Type: Inaugural lecture
- Identifier: vital:11969 , http://hdl.handle.net/10353/d1007279
- Full Text:
- Authors: Osode, Patrick
- Language: English
- Type: Inaugural lecture
- Identifier: vital:11969 , http://hdl.handle.net/10353/d1007279
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Substantive fairness in dismissals for operational requirements cases
- Authors: Camagu, Asanda Pumeza
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10214 , http://hdl.handle.net/10948/d1008114 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.
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- Authors: Camagu, Asanda Pumeza
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10214 , http://hdl.handle.net/10948/d1008114 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.
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Whither the International Court?
- Authors: Cilliers, A. C
- Subjects: International Court of Justice -- Powers and duties , Mandates -- Namibia , f-sa
- Language: English
- Type: text , Lectures
- Identifier: http://hdl.handle.net/10948/21110 , vital:29441
- Description: The International Court of Justice is an important organ regulating the pacific settlement of international disputes. If the present Court is to function effectively, disrespectful attacks on members of the Court should cease, and the organs of the United Nations should not attempt to use the Court as an instrument of policy. Moreover, the Court itself should adhere to the appropriate method of interpretation of international instruments in litigation having a bearing on political controversies. In October 1966 the General Assembly of the United Nations purported to terminate South Africa's mandate in respect of South West Africa. The Security Council thereafter requested the Court to advise it as to the legal consequences for states of South Africa's continued presence in South West Africa, notwithstanding Security Council Resolution 276 (1970). Has the mandate been validly terminated?
- Full Text: false
- Authors: Cilliers, A. C
- Subjects: International Court of Justice -- Powers and duties , Mandates -- Namibia , f-sa
- Language: English
- Type: text , Lectures
- Identifier: http://hdl.handle.net/10948/21110 , vital:29441
- Description: The International Court of Justice is an important organ regulating the pacific settlement of international disputes. If the present Court is to function effectively, disrespectful attacks on members of the Court should cease, and the organs of the United Nations should not attempt to use the Court as an instrument of policy. Moreover, the Court itself should adhere to the appropriate method of interpretation of international instruments in litigation having a bearing on political controversies. In October 1966 the General Assembly of the United Nations purported to terminate South Africa's mandate in respect of South West Africa. The Security Council thereafter requested the Court to advise it as to the legal consequences for states of South Africa's continued presence in South West Africa, notwithstanding Security Council Resolution 276 (1970). Has the mandate been validly terminated?
- Full Text: false