Alcoholism and being under the influence of alcohol
- Authors: Maliti, Zandisile
- Date: 2016
- Subjects: Alcoholism and employment , Misconduct in office , Alcoholism -- Diagnosis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8416 , vital:26354
- Description: Being under the influence of alcohol at work or during working hours is dealt with as misconduct. On the other hand, in a case where an employee suffers from alcoholism, such a case is treated as incapacity due to ill health. The possibility of overlap between the two has contributed to a misconception. Alcoholism cases, are at times, incorrectly treated as misconduct. The same applies to cases of being under the influence of alcohol where such cases would be treated as incapacity instead of being treated as misconduct. The distinction between alcoholism and being under the influence of alcohol was made clear in Transnet Freight Rail v Transnet Bargaining Council C644/2009 [2011] ZALCJHB (4 March 2011) where the Labour Court held that employers have an obligation of assisting employees who suffer from alcoholism with counselling and rehabilitation. Such an obligation does not arise when an employee, who is not an alcoholic, comes to work under the influence of alcohol. Whilst the nature of work is taken into consideration in determining whether an employee is under the influence of alcohol or not, the major cause of disharmony in the determination is a common defence of having consumed alcohol during a night before and whether the physical observations combined with positive breathalyser test results or on their own are indicative, on the balance of probabilities, that an employee is under the influence of alcohol or not. There is no need for an employee to injure himself or herself or other employees before a determination is made that he or she is under the influence of alcohol. Physical observations combined with breathalyzer test results, can be indicative of an employee that is being under the influence of alcohol. The nature of work should be an aggravating or mitigating factor rather than a determining factor of guilt.
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- Date Issued: 2016
An evaluation of the approaches of the arbitrators to the promotion of disputes resolution in public education
- Authors: Dolopi, Nkosana
- Date: 2016
- Subjects: Dispute resolution (Law) Arbitrators
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15378 , vital:28236
- Description: Public Education like other sectors such as Health, International Relations, Finance, Local Government and Environmental Affairs that fall under Public Administration as well as business in private, factory and industrial institutions are embraced or characterized by the concept of employer and employee relationships. These relationships are not always wholesome and harmonious but are overshadowed by disputes and strikes which bring about paralysis and polarization of the operation of business and educational stability in public service and administration sectors as well as at learning institutions. These disputes arise from inter alia, disagreements regarding wage negotiations, unfair dismissals, unfair labour practice involving appointments, promotions and transfers, mutual interest, severance pay, automatically dismissals, operational requirements dismissals (both single and multiple), disclosure of information disputes, organizational rights disputes, agency shop disputes, picketing disputes, unfair discrimination disputes in terms of the Employment Equity of Act as amended, and disputes involving the enforcement of collective agreements or the non-compliance with the Basic Conditions of Employment Act and others. Whilst there are similar trends and patterns of disputes in all these sectors, they are, however, not only differ in intensity and rapid occurrence but also in how they are negotiated and settled because the work environments are different at the level of operation, administration and management. What is common in all disputes is that they are all conciliated and arbitrated by arbitrators at the Commission for Conciliation, and Arbitration (hereafter referred to as the CCMA), Education Labour Relations Council (ELRC), Private Resolution Agencies and the Labour Court. The Apartheid era administration had labour laws which dealt with these disputes, but were not progressive and effective in handling them. This placed a heavy burden on the new ANC led government to change the laws of the previous regime. Most of these changes happened in the labour relations and the labour policies. In view of the above situation, the new political dispensation that came into existence and operation in 1994 developed a new labour legislative framework with specific focus on the review of the collective bargaining dispensation. Of significant importance was the entrenchment of labour rights in the Constitution of the Republic of South Africa, 1996. Section 23 of the Constitution is extensive in highlighting the importance to protect amongst others, the right of every trade union to organize and engage in collective bargaining, disclosure of information, restricted rights in domestic sector, rights to establish threshold of representativeness, organizational rights in collective agreements and disputes about organizational rights.
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- Date Issued: 2016
Comparative perspectives on the doctrine of vicarious liability
- Authors: Roets, Maria Elizabeth
- Date: 2016
- Subjects: Liability (Law) -- South Africa , Respondeat superior
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3675 , vital:20452
- Description: The doctrine of vicarious liability provides justification for a deviation from the general rule that fault is an indispensable requirement to attach liability to an individual. The doctrine provides that an aggrieved party may hold an employer liable for the wrongful or delictual conduct of its employees. The South African legal system inherited the doctrine of vicarious liability from common-law and the doctrine is deeply rooted in English-law. The South African legal sphere is subject to constant transformation and as a result hereof, the common-law doctrine of vicarious liability should also be subjected to transformation. Uncertainty reigned in relation to whether the judiciary or the legislature carried the burden to develop the doctrine of vicarious liability in order to accommodate the needs of a modern society. The doctrine of vicarious liability is a universal concept and the transformation that the doctrine has undergone in other common-law countries could prove to be useful guidelines to assist with the development of the doctrine within the South African legal context. The doctrine places a tremendous burden on employers by providing that employers can be held accountable for the unlawful and delictual actions of its employees. One of the stumbling blocks that the South African judiciary had to overcome was to determine in which instances the liability of employers should be restricted in relation to the conduct of their employees. It is common cause that the doctrine, due to its onerous nature, cannot be regarded as absolute. Perhaps one of the most significant restrictions that has been placed on the application of the doctrine has been the fact that employers may only be held accountable for the wrongful conduct of its employees in instances where the employee has acted within the scope of his or her employment. The dividing line between acts committed within the scope of employment and acts committed outside of the scope of employment is a very fine line and the judiciary tend to tread carefully upon pronouncing on such matters. The Constitution of the Republic of South Africa, 1996 reiterates the importance of ensuring that the constitutional values of reasonableness and fairness are adhered to. An aggrieved party would be left with deep scars in the event that the individual is prohibited from instituting an action against an employer for harm or loss suffered as a result of a wrongful action of an employee of that employer. The employer would suffer prejudice in the event that the employer is held accountable for the wrongful conduct of an employee which is unrelated to the business of the employer. The answer to the conundrum lies in striking a balance between the prejudice suffered by the aggrieved party and the prejudice suffered by the employer. The aim of the judiciary should be to ensure that restrictions made to the application and interpretation of the doctrine of vicarious liability would be justifiable and reasonable in terms of the Constitution. The balancing of the interests of the employer and the balancing of the interests of the aggrieved parties are essential to ensure that justice prevails. It is common cause that no general test exist in the South African legal sphere in order to determine the liability of an employer for the wrongful conduct of its employees. Due to the complex nature of the doctrine of vicarious liability it can be averred that a general test would not address the technicalities of the doctrine. An important consideration to determine the liability of an employer is to establish whether a sufficiently close connection existed between the duties of the employee and the wrongful conduct of the employee. This factor can be considered as the “golden thread” that must be present to determine the liability of the employer. The doctrine of vicarious liability is a concept which has proved to be imperative in the South African legal sphere. Employers should be held accountable for the wrongful conduct of its employees, but simultaneously the constitutional values of reasonableness and fairness should be adhered to. Even though vicarious liability is an onerous concept for employers, justice would prevail if the values of the Constitution are applied religiously.
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- Date Issued: 2016
Determining reasonableness in the light of Sidumo
- Authors: Govender, Mogisvaree Murugan
- Date: 2016
- Subjects: Labor laws and legislation -- South Africa Employees -- Law and legislation -- South Africa Law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11648 , vital:26947
- Description: The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.
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- Date Issued: 2016
Equal pay for equal work
- Authors: Paul, Gary William
- Date: 2016
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa , Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
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- Date Issued: 2016
Legal privilege in tax matters
- Authors: Delport, Jacqueline Hayley
- Date: 2016
- Subjects: Tax administration and procedure Tax consultants
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12637 , vital:27101
- Description: In South Africa the boundaries of the common law principle of legal professional privilege in tax matters is unclear. Common law legal professional privilege in South Africa and in other jurisdictions has been a right available only to clients of attorneys. In 2015, amendments were enacted in section 42A of the Tax Administration Laws Amendment Act. These amendments set out further requirements that need to be satisfied for a taxpayer to claim his right to legal professional privilege over particular communications. The amendment does not feature any recognition of the extension of legal professional privilege for which all non-attorney tax practitioners have been lobbying for since the enactment of the Tax Administration Act. The stance taken by SARS in its non-response to the pleas for extension of legal professional privilege have both Constitutional and administrative consequences: constitutional consequences in the form of the infringement of the non-attorney tax practitioner’s right to equality and the taxpayer’s right to privacy: administrative consequences arise in the form of an infringement of an individual’s right to fair administrative justice under the Promotion of Administrative Justice Act. Foreign jurisdictions have been considered to determine whether South African is operating in line with international standards relating to legal professional privilege. Although, not every foreign jurisdiction examined for the purpose of this study, has implemented an extension of legal professional privilege, they have still ruled on the matter, or implemented an alternative solution, for example, a accountant concession for accountants. On this basis it is submitted that South Africa must implement a new provision within the Tax Administration Act defining the extension of legal professional privilege by law.
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- Date Issued: 2016
The application of section 17 of the Employment of Educators' Act
- Authors: Mnguni, Sihle
- Date: 2016
- Subjects: Educational law and legislation -- South Africa Labor laws and legislation -- South Africa Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11865 , vital:26999
- Description: The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.
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- Date Issued: 2016
The legal consequences of migration of public Further Education and Training college employees to the Department of Higher Education and Training
- Authors: Coetzer, Louwrens Stefanus Daniel
- Date: 2016
- Subjects: College personnel management -- South Africa , Education, Higher -- South Africa -- Administration , Educational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6983 , vital:21189
- Description: Staff, previously employed by Public Technical and Vocation Education and Training (TVET) Colleges, migrated (transferred) to the Department of Higher Education and Training (DHET) in terms of Section 197 of the Labour Relations Act. This treatise investigates the legal consequences of the migration of the staff from the fifty (50) TVET Colleges to DHET and focuses on the different categories of staff. The conditions of service of all the categories of staff before migration are compared with that after the migration. Meaningful recommendations are made about negotiations that should take place in the respective bargaining chambers in order to ensure a smooth transition that will prevent unnecessary legal consequences in future. The treatise furthermore analyses the legal consequences of staff, employed by temporary employment services to perform outsourced functions at TVET Colleges, who did not migrate to DHET. The legal implications of these members of staff is debated and evaluated. The treatise also discusses the performance management system and the changes from the integrated quality management system of lecturers to the performance management development system of public servants. TVET Colleges absorb the employment costs (as a separate employer) to ensure that there is growth in the Full Time Equivalents of Ministerial programmes, funded by DHET. The treatise makes meaningful recommendations to the new employer (DHET) with regard to the appointment of staff to conduct ministerial programmes and the overtime remuneration of current staff that willingly agree to work overtime but are not fairly remunerated by DHET. The treatise also considers the second phase of the migration process, namely the development of a blueprint organogram and the development of job descriptions for the different functions identified on the organogram. The process should ideally be followed by a restructuring process where staff are placed in identified functions and must be capacitated to perform the functions adequately. This process will ensure alignment of functions in the fifty TVET Colleges. Finally, the treatise notes the issue of workplace discipline at the TVET College and the definition of the workplace. It offers a proposal to the DHET to negotiate with the unions about defining the workplace as this has a legal consequence for attaining the objective of sound labour relations. It make meaningful recommendations about the overlapping regulatory requirements applicable to the TVET College as a legal person and DHET as an employer.
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- Date Issued: 2016
The Rights of victims of crime in South Africa
- Authors: Nkukwana , Zingisile Wiseman
- Date: 2016
- Subjects: Victims of crimes -- South Africa Victims of crimes -- Civil rights -- South Africa Crime -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/12627 , vital:27100
- Description: There is a perception among victims of crime, and people in general, in South Africa that the country’s laws favour and protect offenders. These people believe that offenders have more rights than victims which are derived from the Constitution of the country, and other legislative Acts of parliament. This view may sometimes lead to vigilantism and a total disregard of the law. The study will show that victims do have rights in the country’s legislations. The study briefly explains the sources of such laws, like the Constitution, the Victims Charter and selected provisions of some Acts of parliament. It is a fact that the section 35 of the Constitution provides in detail, the rights of the arrested, detained and accused. It is also submitted persons that there is no specific provision that talks about the rights of the victims of crime. However, that does not mean that such victims do not have rights in terms of the constitution. The rights of victims of crime are seen during the courts’ interpretation and application of rights mentioned in the Bill of Rights. The use of words like “everyone” and “any person” in the Bill of Rights also refers to victims of crime. Therefore, the Constitution is not victim-biased and offender-friendly. The Constitution protects everybody because it seeks to uphold the values of human dignity, equality, freedom and the African concept of ubuntu. The study discusses briefly the rights of victims as adopted by the Victims’ Charter. The Charter lists these rights, but does not explain how such rights are to be achieved. South Africa also developed a document called the Minimum Standards for Services for Victims of Crime which indicates how each right is to be achieved. The study also shows that South Africa had developed some Acts of parliament even before the adoption of the Victims Charter. South Africa claims that the Victims’ Charter is compliant with the Constitution and the United Nations Declaration of Basic Principles of Justice Abuse of Power of 1985. It is submitted that this statement is not entirely correct, especially with regards to the provision that deals with compensation. South Africa did not define compensation as defined by the United Nations Declaration. This can be seen as a dismal failure by South Africa to abide by the United Nations Declaration and this has resulted in more harm suffered by victims of crime. The study also discusses how rape victims benefit through the use of Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. This begins with the changing of the definition of rape. The Act also deals with how rape victims can access antiretroviral drugs to prevent HIV/Aids infection. It explains limitations on the right to privacy of the accused, especially to compel him or her to undergo an HIV test. The HIV positive status of the accused can be used as an aggravating factor during sentencing in terms of UNAIDS policies. S v Nyalungu 2005 (JOL) 13254 (T) is a leading case in South Africa showing compliance with UNAIDS policies. Restorative justice mechanisms have been discussed to show positive movement by South Africa from a retributive justice system to a restorative justice system. The advantages of such mechanisms for victims have been discussed. The study also describes briefly some selected provisions of the Criminal Procedure Act of 1977 and how these provisions benefit victims of crime. These include sections 153, 170A, 297, 299A, 300 and 301. The study highlights some challenges that still exist and what innovations can be made. This includes recommendations which can be made to benefit victims of crime further. For example, an apology can be used as one of the important principles in the restorative justice system. It is submitted and recommended that truth and apology go hand in glove and the basic elements of forgiveness. South Africa can pride itself with regards to this approach especially during the Truth and Reconciliation Commission which was established in post-apartheid South Africa. The study concludes by saying that South Africa should set up a victim-compensation scheme. It is submitted that South Africa can afford such a scheme despite the problems identified.
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- Date Issued: 2016