Dismissal law in the education sector
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
Innovations introduced into the South African criminal justice by the child justice Act 75 of 2008
- Jokani, Mkhuseli Christopher
- Authors: Jokani, Mkhuseli Christopher
- Date: 2011
- Subjects: Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10176 , http://hdl.handle.net/10948/1571 , Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Description: The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
- Full Text:
- Date Issued: 2011
- Authors: Jokani, Mkhuseli Christopher
- Date: 2011
- Subjects: Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10176 , http://hdl.handle.net/10948/1571 , Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Description: The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
- Full Text:
- Date Issued: 2011
The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children
- Authors: Hlophe, Stanley Siphiwe
- Date: 2011
- Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
- Full Text:
- Date Issued: 2011
- Authors: Hlophe, Stanley Siphiwe
- Date: 2011
- Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
- Full Text:
- Date Issued: 2011
The concept of decent work in a South African context
- Authors: Ndung'u, Agnes
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10199 , http://hdl.handle.net/10948/1618 , Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Description: Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
- Full Text:
- Date Issued: 2011
- Authors: Ndung'u, Agnes
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10199 , http://hdl.handle.net/10948/1618 , Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Description: Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
- Full Text:
- Date Issued: 2011
The constitutional rights of 'benefactor children' and 'saviour siblings' to bodily intergrity and autonomy
- Authors: Du Plessis, Emma Kate
- Date: 2011
- Subjects: Children's rights , Civil rights , Genetic engineering
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10283 , http://hdl.handle.net/10948/d1010420 , Children's rights , Civil rights , Genetic engineering
- Description: In modern society, children are acknowledged as bearers of both children‟s rights and all other rights in the Bill of Rights which generally apply to children. One important right, outside of section 28, is that of bodily integrity or the right to control and decide what happens to their body. Therefore, children theoretically have the right to consent to medical treatment and surgery. However, children are generally deemed to lack the necessary maturity to make decisions of this nature and require parental consent before any medical procedure may be performed. Following the enactment of the Children‟s Act 38 of 2005, the age of consent for medical intervention was lowered to the uniform age of twelve. Children above the age of twelve are recognised as having the capacity to make their own decisions in respect of bodily integrity, whereas those under twelve still require parental consent. While this may be a positive evelopment, it is potentially problematic for two groups of children, known as „benefactor children‟ and „saviour siblings‟. In the last 50 years, there has been a noticeable advancement in the field of genetic research. One such development is the possibility of creating one child to save the life of another through tissue or organ donation. This has provided options to parents of children with life threatening conditions where before, there was little hope of a cure. Now, at the request of these parents, children can be specifically “genetically engineered” as an embryo, to become a tissue or organ match to a sick sibling. These children are known as „saviour siblings‟. Another group of children has emerged. While not the result of “genetic engineering”, they serve a similar purpose in being potential life-saving donors to an ill sibling and are known as „benefactor children‟. Both categories of children enjoy the protection of fundamental rights. For those who are under twelve years of age however, the right to bodily integrity can be infringed upon by the proposed surgical removal of organs or tissue for the benefit of a sick sibling, based purely on a parent‟s consent. At stake too, is the right to reproductive autonomy. Parents bear children for a number of different reasons, which can include raising a child to save the life of another. As they have the right to reproductive autonomy, adults are able to decide when they want children and for what reason they want children, which can include the various techniques used to bring about „saviour siblings‟. However, as rights are mutually interrelated and nterdependent, they cannot be viewed in isolation. Therefore, it must be asked: does a person‟s right to reproductive autonomy, as guaranteed by the Constitution, justify interference with an embryo? As an embryo is not recognised in South African law as a legal subject, it will be difficult to justify interference with this right on this basis. The right to consent to medical intervention only from age twelve was described as potentially problematic for „benefactor children‟ and „saviour siblings‟, as parents with seriously ill children may become so emotionally burdened, that they place the welfare of the sick child over that of the healthy child. Thus, it is possible that parents will consent to any and all procedures on the „benefactor child‟ or „saviour sibling‟, regardless of the implications to the health and suffering of the healthy child. Section 28(2) of the Constitution states that the child‟s best interests are of paramount importance but, it must be asked, whose best interests are more important when more than one child is involved? As this is a decision parents are incapable of making at that time, the decision should be made by a neutral, impartial and unemotional third party such as the Court, which can be assisted by the Family Advocate and an ombudsman, who are experts in assisting children and promoting their best interests. Presently, South African law does not expressly address „saviour siblings‟. However, with few changes to the National Health Act and other Regulations, this is an area which could be regulated in time. These changes could include finalising the draft regulations as well as providing a list of the medical and dental purposes for which blood and tissue can be removed and should make specific reference to the removal of tissue, blood or blood products to treat a sick sibling. It is also imperative that South Africa regulates these matters now, as „saviour siblings‟ are no longer simply a matter for the future. Furthermore, legislation needs to be amended and enacted to prevent the law from becoming out-dated and redundant, leaving „benefactor children‟ and „saviour siblings‟ vulnerable while law is being drafted. In that international law is silent on the matter, South Africa would be well advised to consider foreign law such as the United Kingdom, in developing its law. As the United Kingdom has developed a National Board, so too should South Africa, as this would assist in regulating „saviour siblings‟ by allowing members to review each proposed case of „saviour siblings‟. This is merely one recommendation of several which could facilitate a smooth, controlled regulation of a highly emotional topic. Children remain one of the most vulnerable groups in society and their rights are often susceptible to infringement or abuse. It is incumbent on the law to ensure that, wherever possible, these rights are protected, especially as science continues to advance and it becomes more difficult to determine what is morally correct.
- Full Text:
- Date Issued: 2011
- Authors: Du Plessis, Emma Kate
- Date: 2011
- Subjects: Children's rights , Civil rights , Genetic engineering
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10283 , http://hdl.handle.net/10948/d1010420 , Children's rights , Civil rights , Genetic engineering
- Description: In modern society, children are acknowledged as bearers of both children‟s rights and all other rights in the Bill of Rights which generally apply to children. One important right, outside of section 28, is that of bodily integrity or the right to control and decide what happens to their body. Therefore, children theoretically have the right to consent to medical treatment and surgery. However, children are generally deemed to lack the necessary maturity to make decisions of this nature and require parental consent before any medical procedure may be performed. Following the enactment of the Children‟s Act 38 of 2005, the age of consent for medical intervention was lowered to the uniform age of twelve. Children above the age of twelve are recognised as having the capacity to make their own decisions in respect of bodily integrity, whereas those under twelve still require parental consent. While this may be a positive evelopment, it is potentially problematic for two groups of children, known as „benefactor children‟ and „saviour siblings‟. In the last 50 years, there has been a noticeable advancement in the field of genetic research. One such development is the possibility of creating one child to save the life of another through tissue or organ donation. This has provided options to parents of children with life threatening conditions where before, there was little hope of a cure. Now, at the request of these parents, children can be specifically “genetically engineered” as an embryo, to become a tissue or organ match to a sick sibling. These children are known as „saviour siblings‟. Another group of children has emerged. While not the result of “genetic engineering”, they serve a similar purpose in being potential life-saving donors to an ill sibling and are known as „benefactor children‟. Both categories of children enjoy the protection of fundamental rights. For those who are under twelve years of age however, the right to bodily integrity can be infringed upon by the proposed surgical removal of organs or tissue for the benefit of a sick sibling, based purely on a parent‟s consent. At stake too, is the right to reproductive autonomy. Parents bear children for a number of different reasons, which can include raising a child to save the life of another. As they have the right to reproductive autonomy, adults are able to decide when they want children and for what reason they want children, which can include the various techniques used to bring about „saviour siblings‟. However, as rights are mutually interrelated and nterdependent, they cannot be viewed in isolation. Therefore, it must be asked: does a person‟s right to reproductive autonomy, as guaranteed by the Constitution, justify interference with an embryo? As an embryo is not recognised in South African law as a legal subject, it will be difficult to justify interference with this right on this basis. The right to consent to medical intervention only from age twelve was described as potentially problematic for „benefactor children‟ and „saviour siblings‟, as parents with seriously ill children may become so emotionally burdened, that they place the welfare of the sick child over that of the healthy child. Thus, it is possible that parents will consent to any and all procedures on the „benefactor child‟ or „saviour sibling‟, regardless of the implications to the health and suffering of the healthy child. Section 28(2) of the Constitution states that the child‟s best interests are of paramount importance but, it must be asked, whose best interests are more important when more than one child is involved? As this is a decision parents are incapable of making at that time, the decision should be made by a neutral, impartial and unemotional third party such as the Court, which can be assisted by the Family Advocate and an ombudsman, who are experts in assisting children and promoting their best interests. Presently, South African law does not expressly address „saviour siblings‟. However, with few changes to the National Health Act and other Regulations, this is an area which could be regulated in time. These changes could include finalising the draft regulations as well as providing a list of the medical and dental purposes for which blood and tissue can be removed and should make specific reference to the removal of tissue, blood or blood products to treat a sick sibling. It is also imperative that South Africa regulates these matters now, as „saviour siblings‟ are no longer simply a matter for the future. Furthermore, legislation needs to be amended and enacted to prevent the law from becoming out-dated and redundant, leaving „benefactor children‟ and „saviour siblings‟ vulnerable while law is being drafted. In that international law is silent on the matter, South Africa would be well advised to consider foreign law such as the United Kingdom, in developing its law. As the United Kingdom has developed a National Board, so too should South Africa, as this would assist in regulating „saviour siblings‟ by allowing members to review each proposed case of „saviour siblings‟. This is merely one recommendation of several which could facilitate a smooth, controlled regulation of a highly emotional topic. Children remain one of the most vulnerable groups in society and their rights are often susceptible to infringement or abuse. It is incumbent on the law to ensure that, wherever possible, these rights are protected, especially as science continues to advance and it becomes more difficult to determine what is morally correct.
- Full Text:
- Date Issued: 2011
The education sector as an essential service
- Authors: Adams, Anton John
- Date: 2011
- Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
- Full Text:
- Date Issued: 2011
- Authors: Adams, Anton John
- Date: 2011
- Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
- Full Text:
- Date Issued: 2011
The extension of employment rights to employees who work unlawfully
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
The legal framework pertaining to selected segments of the financial market
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
The obligation of non-discrimination under the General Agreement on Trade in Services (GATS) and the agreement on Trade-related aspects of Intellectual Property Rights (TRIPS): a developmental perspective
- Authors: Bidie, Simphiwe Sincere
- Date: 2011
- Subjects: Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11113 , http://hdl.handle.net/10353/338 , Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Description: The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
- Full Text:
- Date Issued: 2011
- Authors: Bidie, Simphiwe Sincere
- Date: 2011
- Subjects: Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11113 , http://hdl.handle.net/10353/338 , Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Description: The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
- Full Text:
- Date Issued: 2011
The prevalence and consequences of workplace bullying in South Africa
- Authors: Momberg, Markus Albertus
- Date: 2011
- Subjects: Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10211 , http://hdl.handle.net/10948/1572 , Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Description: A study is made of the ever-growing worldwide social pandemic of workplace bullying. We define workplace bullying in terms of its characteristics and distinguish it from unfair discrimination in the form of harassment. A survey is presented of its occurrence worldwide and how it manifests as an organisational conflict, both as hierarchical and horizontal abuse. This is analysed in terms of a social science perspective. We consider grievance reporting as an indication of trends in workplace bullying and discuss the limitations of such reporting. We review the consequent effects of such limitations on the health of workers and workplace efficiency and note the shortcomings of existing labour law in dealing with this inadequacy. Our findings are summarised, with recommendations for resolving this conflict situation.
- Full Text:
- Date Issued: 2011
- Authors: Momberg, Markus Albertus
- Date: 2011
- Subjects: Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10211 , http://hdl.handle.net/10948/1572 , Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Description: A study is made of the ever-growing worldwide social pandemic of workplace bullying. We define workplace bullying in terms of its characteristics and distinguish it from unfair discrimination in the form of harassment. A survey is presented of its occurrence worldwide and how it manifests as an organisational conflict, both as hierarchical and horizontal abuse. This is analysed in terms of a social science perspective. We consider grievance reporting as an indication of trends in workplace bullying and discuss the limitations of such reporting. We review the consequent effects of such limitations on the health of workers and workplace efficiency and note the shortcomings of existing labour law in dealing with this inadequacy. Our findings are summarised, with recommendations for resolving this conflict situation.
- Full Text:
- Date Issued: 2011
The right to organise: critiquing the role of trade unions in shaping work relations in post-apartheid South Africa
- Authors: Nyathi, Mthokozisi
- Date: 2011
- Subjects: Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3690 , http://hdl.handle.net/10962/d1003205 , Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Description: Organised labour continues to play a prominent role in shaping employment relations in South Africa. The individual worker is powerless and in a weaker bargaining position against his employer. The advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. The trade union movement has made and consolidated significant gains since the advent of democracy. It however faces a plethora of new challenges, such as the negative forces of globalisation, declining membership (often associated with high levels of unemployment and the changing nature of work from standard to atypical employment), the resurfacing of adversarialism in the bargaining process, and numerous shortcomings inherent in forums established to facilitate corporatism. Business is intensifying its calls for investor-friendly policies, which effectively mean a relaxation of labour policies. The trade union movement faces an enormous task of rebuilding confidence and credibility among its members and at the same time showing some commitment to other social actors, government and business, that it is committed to contribute to economic growth and employment creation. The central focus of this thesis will be to highlight the gains made by the trade union movement, the numerous challenges threatening their existence, and how they have attempted to redefine their role in the face of these challenges. It will attempt to offer advice on how trade unions can continue to play a prominent role in shaping relations of work in South Africa. The study begins with a historical overview of trade unionism in South Africa. It then attempts to establish how trade unions have made use of the institution of collective bargaining, the importance of organisational rights to the trade union movement, the effectiveness of industrial action, and the emerging challenges threatening the vibrancy of trade unions. The overall aim is to assess whether the trade union movement is still a force to be reckoned with and its future role in influencing employment relations in South Africa.
- Full Text:
- Date Issued: 2011
- Authors: Nyathi, Mthokozisi
- Date: 2011
- Subjects: Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3690 , http://hdl.handle.net/10962/d1003205 , Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Description: Organised labour continues to play a prominent role in shaping employment relations in South Africa. The individual worker is powerless and in a weaker bargaining position against his employer. The advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. The trade union movement has made and consolidated significant gains since the advent of democracy. It however faces a plethora of new challenges, such as the negative forces of globalisation, declining membership (often associated with high levels of unemployment and the changing nature of work from standard to atypical employment), the resurfacing of adversarialism in the bargaining process, and numerous shortcomings inherent in forums established to facilitate corporatism. Business is intensifying its calls for investor-friendly policies, which effectively mean a relaxation of labour policies. The trade union movement faces an enormous task of rebuilding confidence and credibility among its members and at the same time showing some commitment to other social actors, government and business, that it is committed to contribute to economic growth and employment creation. The central focus of this thesis will be to highlight the gains made by the trade union movement, the numerous challenges threatening their existence, and how they have attempted to redefine their role in the face of these challenges. It will attempt to offer advice on how trade unions can continue to play a prominent role in shaping relations of work in South Africa. The study begins with a historical overview of trade unionism in South Africa. It then attempts to establish how trade unions have made use of the institution of collective bargaining, the importance of organisational rights to the trade union movement, the effectiveness of industrial action, and the emerging challenges threatening the vibrancy of trade unions. The overall aim is to assess whether the trade union movement is still a force to be reckoned with and its future role in influencing employment relations in South Africa.
- Full Text:
- Date Issued: 2011
Vicarious libality for sexual harassment at work
- Authors: Muzuva, Arthurnatious
- Date: 2011
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10233 , http://hdl.handle.net/10948/d1011386 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
- Full Text:
- Date Issued: 2011
- Authors: Muzuva, Arthurnatious
- Date: 2011
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10233 , http://hdl.handle.net/10948/d1011386 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
- Full Text:
- Date Issued: 2011
Accountability of child soldiers in conflict situations in Sub Saharan Africa
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010
An evaluation of the Child Justice Act
- Authors: McGregor, Melissa
- Date: 2010
- Subjects: Children -- Legal status, laws, etc -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10175 , http://hdl.handle.net/10948/1278 , Children -- Legal status, laws, etc -- South Africa
- Description: “No civilized society, regards children as accountable for their actions to the same extent as adults”.1 In the absence of a justice system applicable exclusively to children in conflict with the law in South Africa, children are subjected to the same rigours of the criminal law applicable to adults in South Africa. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.2 As a signatory to the United Nations Convention on the Rights of the Child, South Africa has a duty to ensure that the children in conflict with the law are treated in a manner that gives effect to the protectionary ideals espoused in the Convention. In July 2000, the South African Law Commission [Project 106] released the Child Justice Bill3, together with its Report on Juvenile Justice. Because the child justice system at present is not governed by legislation, uncertainty and inconsistency are constant dangers. We need legislation to ensure that all children in conflict with the law are dealt with consistently, fairly and appropriately. The question that needs to be answered in this treatise, is whether the Child Justice Act 75 of 2008, which comes into effect on 01 April 2010, is a legislative framework that incorporates due process rights together with the rights of children who is alleged to have committed an offence, to be protected and treated in a manner appropriate to their age.
- Full Text:
- Date Issued: 2010
- Authors: McGregor, Melissa
- Date: 2010
- Subjects: Children -- Legal status, laws, etc -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10175 , http://hdl.handle.net/10948/1278 , Children -- Legal status, laws, etc -- South Africa
- Description: “No civilized society, regards children as accountable for their actions to the same extent as adults”.1 In the absence of a justice system applicable exclusively to children in conflict with the law in South Africa, children are subjected to the same rigours of the criminal law applicable to adults in South Africa. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.2 As a signatory to the United Nations Convention on the Rights of the Child, South Africa has a duty to ensure that the children in conflict with the law are treated in a manner that gives effect to the protectionary ideals espoused in the Convention. In July 2000, the South African Law Commission [Project 106] released the Child Justice Bill3, together with its Report on Juvenile Justice. Because the child justice system at present is not governed by legislation, uncertainty and inconsistency are constant dangers. We need legislation to ensure that all children in conflict with the law are dealt with consistently, fairly and appropriately. The question that needs to be answered in this treatise, is whether the Child Justice Act 75 of 2008, which comes into effect on 01 April 2010, is a legislative framework that incorporates due process rights together with the rights of children who is alleged to have committed an offence, to be protected and treated in a manner appropriate to their age.
- Full Text:
- Date Issued: 2010
An evaluation of the time frame of the disclosure process in the evidence of 97 child witnesses in cases in the Belville sexual offences court
- Authors: Lehmann, Caron Mary
- Date: 2010
- Subjects: Disclosure of information -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10174 , http://hdl.handle.net/10948/1279 , Disclosure of information -- Law and legislation -- South Africa
- Description: When children are sexually abused it usually takes place in concealment. This means that unless the child reveals the abuse, it will remain hidden. This study commences with an examination of the reasons as to why a child may delay the disclosure of sexual abuse. The result of research indicates that there are certain recognisable reasons, which are frequently encountered, as to why a child may either delay telling anyone about his or her experience or as to why s/he may never tell anyone. Traditional assumptions of what are considered normal reactions to sexual abuse are tested. The discussion then moves on to considering the approach of the South African courts in regard to evaluating the manner and timing of a child’s revelations, as well as to considering the impact which a delay may have on the acceptance of that child’s evidence. Intrinsic to this analysis is the progress made in our courts, and by the legislature, in recognising factors that influence a child to either blurt out the information immediately or conceal it for a period of time. Thereafter, the testimony of 97 child victims of sexual abuse is analysed with a view to determining whether these children fit the profiles raised in research on the subject and described in some of the case law. The rate of attrition in cases of sexual offences against children is considered as well as the role that cross-examination plays in either enhancing or reducing a child’s ability to accurately describe an acceptable motivation for the delay in disclosure. The study concludes with a discussion of how well child victims are served in a legal environment designed to provide a forum for eliciting the truth from a child witness. The use of intermediaries and the impact of cross-examination is discussed as well as the ability of judicial officers to adjudicate in matters requiring highly specialized knowledge and experience.
- Full Text:
- Date Issued: 2010
- Authors: Lehmann, Caron Mary
- Date: 2010
- Subjects: Disclosure of information -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10174 , http://hdl.handle.net/10948/1279 , Disclosure of information -- Law and legislation -- South Africa
- Description: When children are sexually abused it usually takes place in concealment. This means that unless the child reveals the abuse, it will remain hidden. This study commences with an examination of the reasons as to why a child may delay the disclosure of sexual abuse. The result of research indicates that there are certain recognisable reasons, which are frequently encountered, as to why a child may either delay telling anyone about his or her experience or as to why s/he may never tell anyone. Traditional assumptions of what are considered normal reactions to sexual abuse are tested. The discussion then moves on to considering the approach of the South African courts in regard to evaluating the manner and timing of a child’s revelations, as well as to considering the impact which a delay may have on the acceptance of that child’s evidence. Intrinsic to this analysis is the progress made in our courts, and by the legislature, in recognising factors that influence a child to either blurt out the information immediately or conceal it for a period of time. Thereafter, the testimony of 97 child victims of sexual abuse is analysed with a view to determining whether these children fit the profiles raised in research on the subject and described in some of the case law. The rate of attrition in cases of sexual offences against children is considered as well as the role that cross-examination plays in either enhancing or reducing a child’s ability to accurately describe an acceptable motivation for the delay in disclosure. The study concludes with a discussion of how well child victims are served in a legal environment designed to provide a forum for eliciting the truth from a child witness. The use of intermediaries and the impact of cross-examination is discussed as well as the ability of judicial officers to adjudicate in matters requiring highly specialized knowledge and experience.
- Full Text:
- Date Issued: 2010
Application of Section 189 and Section 189A of the Labour Relations Act 66 of 1995 as amended
- Authors: Rune, Mawethu Siyabulela
- Date: 2010
- Subjects: Downsizing of organizations -- Law and legislation -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10220 , http://hdl.handle.net/10948/1281 , Downsizing of organizations -- Law and legislation -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Economies worldwide have become more integrated and competitive due to the phenomenon of globalisation and its antecedents, which are improved technological communication, the use of technology in production, ever improving management of skills as well as standards of education. Amongst the consequences have been changing demands and rising expectations in terms of employee remuneration, job security and conditions of work. This has at the same time been accompanied by employers expecting greater profit. Against this backdrop, this treatise seeks to interrogate and to explain the processes that should constitute fair, rational and justifiable employee dismissal for operational purposes. This is done bearing in mind the global economic crisis and its impact on employees. The treatise constitutes an attempt to carve a cushioning mechanism for employees in the midst of the global economic storm. We consider the inadequacies of common law principles. We also submit that section 189 in its present form and its application by courts do not provide for substantive fairness interrogation when dealing with dismissal for operational reasons. We explore the legislative framework, interpretation by leading academics as well as applications by courts of section 189A, which prescribes that if dismissal is based on operational reasons, consideration must not only be based on substantive and procedural fairness but also that proper consideration of alternatives must have been explored before dismissal is effected.
- Full Text:
- Date Issued: 2010
- Authors: Rune, Mawethu Siyabulela
- Date: 2010
- Subjects: Downsizing of organizations -- Law and legislation -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10220 , http://hdl.handle.net/10948/1281 , Downsizing of organizations -- Law and legislation -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Economies worldwide have become more integrated and competitive due to the phenomenon of globalisation and its antecedents, which are improved technological communication, the use of technology in production, ever improving management of skills as well as standards of education. Amongst the consequences have been changing demands and rising expectations in terms of employee remuneration, job security and conditions of work. This has at the same time been accompanied by employers expecting greater profit. Against this backdrop, this treatise seeks to interrogate and to explain the processes that should constitute fair, rational and justifiable employee dismissal for operational purposes. This is done bearing in mind the global economic crisis and its impact on employees. The treatise constitutes an attempt to carve a cushioning mechanism for employees in the midst of the global economic storm. We consider the inadequacies of common law principles. We also submit that section 189 in its present form and its application by courts do not provide for substantive fairness interrogation when dealing with dismissal for operational reasons. We explore the legislative framework, interpretation by leading academics as well as applications by courts of section 189A, which prescribes that if dismissal is based on operational reasons, consideration must not only be based on substantive and procedural fairness but also that proper consideration of alternatives must have been explored before dismissal is effected.
- Full Text:
- Date Issued: 2010
Criminalisation of HIV/AIDS in South Africa: a critical look at the Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
Dismissal due to excessive ill health absenteeism
- Authors: Van der Walt, Natasha
- Date: 2010
- Subjects: Employees, Dismissal of -- South Africa , Absenteeism (Labor) -- South Africa , Employees -- Health and hygiene
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10201 , http://hdl.handle.net/10948/1286 , Employees, Dismissal of -- South Africa , Absenteeism (Labor) -- South Africa , Employees -- Health and hygiene
- Description: In a globally competitive market place companies strive to become as efficient as possible. Absenteeism is a worldwide problem as it impacts on company efficiency and cost effectiveness. A large portion of absenteeism can be attributed to ill health absences. Companies have prioritized the need to find ways of managing and reducing absenteeism. In South Africa such processes have to occur within the confines of a constitutional right to fair labour practices and other prescriptive labour legislation. The issue is somewhat complicated by the fact that employees have a right to paid time off due to illness. It is thus clear that not all ill health absenteeism can be deemed problematic. A balancing act needs to occur between the operational needs of the employer and the rights of employees. Ill health absenteeism becomes problematic once a threshold is reached at which point it becomes intolerable for the employer, thus deemed excessive. Excessive ill health absenteeism is not a difficult concept to understand, however it is not specifically defined. A universal concept of when absence is deemed to have reached the threshold of excessiveness does not exist and varies from one employer to the next. Excessive ill health absence is a multi-facetted concept (as a result of the various types of ill health absence) and thus a universal process cannot be adopted to deal with all types of excessive ill health absenteeism. In an attempt to deal with the different types of ill health absenteeism it is pertinent to categorize the issues. The author suggests various ways of dealing with ill health absenteeism, depending on the facts of each case. A misconduct process should only be applicable in instances where it can be proved that sick leave is used inappropriately or the reason for absence is unknown. Although case law suggests the prevalence of dealing with ill health absence as misconduct, especially in the case of persistent short term absence, these cases rarely prove that abuse is taking place. Suspicions regarding abuse without proper evidence to support such claims will not satisfy the substantive fairness requirements. In the event that illness is of a medium to long term nature, an ill health incapacity process may be the most appropriate process to apply, as in such instances a clearly distinguishable illness exists, which makes accommodation less problematic. Such a process is less suited to persistent short term absence as this can be the result of many illnesses or injuries. In the case of persistent short term absence, the individual may be fully capable of performing their duties upon returning to work, however their frequent absence causes unreliability and inefficiency. It is clear in this instance that accommodation cannot take place due to the unpredictable nature of the absences. The concern with persistent short term absence is less with the illness or illnesses displayed and more with the absences itself. The author suggests that it may be appropriate to deal with such absences on the basis of incapacity due to poor work performance. This assertion is based on the fact that the concern is with frequent short term absence that causes the employee to be unreliable; however the illnesses are not of such a nature that it can warrant accommodation. If it is accepted that the employee is not malingering or if the malingering cannot be proved the employee has failed to meet a performance standard (attendance standard). It is suggested that as part of any incapacity investigation consideration should be given to whether the illness or injury can be deemed a disability. This is necessary as disabled individuals are afforded special protection and treatment. A dismissal of an incapacitated individual that is actually deemed “disabled” could be held to be automatically unfair and therefore it is pertinent that this is established at the outset.
- Full Text:
- Date Issued: 2010
- Authors: Van der Walt, Natasha
- Date: 2010
- Subjects: Employees, Dismissal of -- South Africa , Absenteeism (Labor) -- South Africa , Employees -- Health and hygiene
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10201 , http://hdl.handle.net/10948/1286 , Employees, Dismissal of -- South Africa , Absenteeism (Labor) -- South Africa , Employees -- Health and hygiene
- Description: In a globally competitive market place companies strive to become as efficient as possible. Absenteeism is a worldwide problem as it impacts on company efficiency and cost effectiveness. A large portion of absenteeism can be attributed to ill health absences. Companies have prioritized the need to find ways of managing and reducing absenteeism. In South Africa such processes have to occur within the confines of a constitutional right to fair labour practices and other prescriptive labour legislation. The issue is somewhat complicated by the fact that employees have a right to paid time off due to illness. It is thus clear that not all ill health absenteeism can be deemed problematic. A balancing act needs to occur between the operational needs of the employer and the rights of employees. Ill health absenteeism becomes problematic once a threshold is reached at which point it becomes intolerable for the employer, thus deemed excessive. Excessive ill health absenteeism is not a difficult concept to understand, however it is not specifically defined. A universal concept of when absence is deemed to have reached the threshold of excessiveness does not exist and varies from one employer to the next. Excessive ill health absence is a multi-facetted concept (as a result of the various types of ill health absence) and thus a universal process cannot be adopted to deal with all types of excessive ill health absenteeism. In an attempt to deal with the different types of ill health absenteeism it is pertinent to categorize the issues. The author suggests various ways of dealing with ill health absenteeism, depending on the facts of each case. A misconduct process should only be applicable in instances where it can be proved that sick leave is used inappropriately or the reason for absence is unknown. Although case law suggests the prevalence of dealing with ill health absence as misconduct, especially in the case of persistent short term absence, these cases rarely prove that abuse is taking place. Suspicions regarding abuse without proper evidence to support such claims will not satisfy the substantive fairness requirements. In the event that illness is of a medium to long term nature, an ill health incapacity process may be the most appropriate process to apply, as in such instances a clearly distinguishable illness exists, which makes accommodation less problematic. Such a process is less suited to persistent short term absence as this can be the result of many illnesses or injuries. In the case of persistent short term absence, the individual may be fully capable of performing their duties upon returning to work, however their frequent absence causes unreliability and inefficiency. It is clear in this instance that accommodation cannot take place due to the unpredictable nature of the absences. The concern with persistent short term absence is less with the illness or illnesses displayed and more with the absences itself. The author suggests that it may be appropriate to deal with such absences on the basis of incapacity due to poor work performance. This assertion is based on the fact that the concern is with frequent short term absence that causes the employee to be unreliable; however the illnesses are not of such a nature that it can warrant accommodation. If it is accepted that the employee is not malingering or if the malingering cannot be proved the employee has failed to meet a performance standard (attendance standard). It is suggested that as part of any incapacity investigation consideration should be given to whether the illness or injury can be deemed a disability. This is necessary as disabled individuals are afforded special protection and treatment. A dismissal of an incapacitated individual that is actually deemed “disabled” could be held to be automatically unfair and therefore it is pertinent that this is established at the outset.
- Full Text:
- Date Issued: 2010