The auditor's duty of reasonable care and skill and the expectation to detect fraud
- Kujinga, Benjamin Tanyaradzwa
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
The regulation of insider trading in South Africa: a roadmap for effective, competitive and adequate regulatory statutory framework
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
The role of the judiciary in protecting the right to freedom of expression in difficult political environments: a case study of Zimbabwe
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
A comparative analysis of mental illness as a defence in criminal law
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
African customary law and gender justice in a progressive democracy
- Authors: Ozoemena, Rita Nkiruka
- Date: 2007
- Subjects: Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3692 , http://hdl.handle.net/10962/d1003207 , Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Description: The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
- Full Text:
- Date Issued: 2007
- Authors: Ozoemena, Rita Nkiruka
- Date: 2007
- Subjects: Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3692 , http://hdl.handle.net/10962/d1003207 , Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Description: The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
Aspects of delictual liability in pharmacy practice
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
Assessing the duty to exhaust internal remedies in the South African law
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
Changing terms and conditions of employment following transferes to the Western Cape department of health
- Authors: Roman, Richard Joseph
- Date: 2007
- Subjects: Labor laws and legislation -- South Africa -- Western Cape , Industrial relations -- South Africa -- Western Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10231 , http://hdl.handle.net/10948/824 , Labor laws and legislation -- South Africa -- Western Cape , Industrial relations -- South Africa -- Western Cape
- Description: This treatise describes the difficulty of changing conditions of service following transfers in terms of Section 197 of the Labour Relations Act, 66 of 1995. The Constitution of the Republic of South Africa, Act 108 of 1996, provides that ambulance services are a Provincial Legislative competence. The City of Cape Town had for many years provided ambulance services on an agency basis to the Department of Health of the Provincial Administration of the Western Cape. The impact of the constitutional provision is that those employers and employees who are performing ambulance services are not entitled anymore to perform such function. The Department of Health must take control over the ambulance services and the employees of the City of Cape Town could be transferred. The challenges facing both employers (old and new) and the trade unions to secure a transfer of the employees from the City of Cape Town to the Department of Health in terms of section 197 of the Labour Relations Act will be highlighted. It is within the context of ensuring protection of jobs whilst simultaneously effect a transfer of contracts of employment that the Labour Relations Act expressly gives various options to the parties involves in a transfer. Of the options include: • A transfer in terms of section 197(2) of the LRA where the service could be transferred from the old employer to the new employer as a going concern. This could happen without the consent of the affected employees or trade unions and collective agreements must be taken over as well, or • The new employer complies with its obligations if the transfer takes place on terms and conditions that are on the whole not less favourable to the employees what they have received by the old employer. In terms of this provision the overall package of conditions of service that was offered should not be less in comparison with that of the old employer. • The parties also have the option to negotiate a transfer agreement that could regulate the conditions of service. The focus is on the description of the conditions of service of both employers and the difficulty to persuade the trade unions to accept the Department’s conditions of service. Part of the difficulty is that the Department must obtain its mandate from the Department of the Public Service and Administration, who is also responsible for the determining of the conditions of service in the Public Service. One of the challenges is that the Department of Health cannot accommodate collective agreements of entities outside the Public Service. The City of Cape Town’s conditions of service is in the form of a collective agreement and the Labour Relations Act is very specific with the various options. These options will be discussed an analised. In conclusion recommendations are made in regard to effect a transfer of conditions of employment in terms of the Labour Relations Act to enable the Department of Health to meet its constitutional obligation.
- Full Text:
- Date Issued: 2007
- Authors: Roman, Richard Joseph
- Date: 2007
- Subjects: Labor laws and legislation -- South Africa -- Western Cape , Industrial relations -- South Africa -- Western Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10231 , http://hdl.handle.net/10948/824 , Labor laws and legislation -- South Africa -- Western Cape , Industrial relations -- South Africa -- Western Cape
- Description: This treatise describes the difficulty of changing conditions of service following transfers in terms of Section 197 of the Labour Relations Act, 66 of 1995. The Constitution of the Republic of South Africa, Act 108 of 1996, provides that ambulance services are a Provincial Legislative competence. The City of Cape Town had for many years provided ambulance services on an agency basis to the Department of Health of the Provincial Administration of the Western Cape. The impact of the constitutional provision is that those employers and employees who are performing ambulance services are not entitled anymore to perform such function. The Department of Health must take control over the ambulance services and the employees of the City of Cape Town could be transferred. The challenges facing both employers (old and new) and the trade unions to secure a transfer of the employees from the City of Cape Town to the Department of Health in terms of section 197 of the Labour Relations Act will be highlighted. It is within the context of ensuring protection of jobs whilst simultaneously effect a transfer of contracts of employment that the Labour Relations Act expressly gives various options to the parties involves in a transfer. Of the options include: • A transfer in terms of section 197(2) of the LRA where the service could be transferred from the old employer to the new employer as a going concern. This could happen without the consent of the affected employees or trade unions and collective agreements must be taken over as well, or • The new employer complies with its obligations if the transfer takes place on terms and conditions that are on the whole not less favourable to the employees what they have received by the old employer. In terms of this provision the overall package of conditions of service that was offered should not be less in comparison with that of the old employer. • The parties also have the option to negotiate a transfer agreement that could regulate the conditions of service. The focus is on the description of the conditions of service of both employers and the difficulty to persuade the trade unions to accept the Department’s conditions of service. Part of the difficulty is that the Department must obtain its mandate from the Department of the Public Service and Administration, who is also responsible for the determining of the conditions of service in the Public Service. One of the challenges is that the Department of Health cannot accommodate collective agreements of entities outside the Public Service. The City of Cape Town’s conditions of service is in the form of a collective agreement and the Labour Relations Act is very specific with the various options. These options will be discussed an analised. In conclusion recommendations are made in regard to effect a transfer of conditions of employment in terms of the Labour Relations Act to enable the Department of Health to meet its constitutional obligation.
- Full Text:
- Date Issued: 2007
Child sex tourism in South African law
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
International trade and environmental disputes : an analysis of Article XX of the General Agreement on Tariffs and Trade (1994) and environmental policies of the developing and developed world
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007
Restraint of trade in the employment context
- Authors: Luckman, Peter Craig
- Date: 2007
- Subjects: Restraint of trade -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10203 , http://hdl.handle.net/10948/842 , Restraint of trade -- South Africa , Labor contract -- South Africa
- Description: Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.
- Full Text:
- Date Issued: 2007
- Authors: Luckman, Peter Craig
- Date: 2007
- Subjects: Restraint of trade -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10203 , http://hdl.handle.net/10948/842 , Restraint of trade -- South Africa , Labor contract -- South Africa
- Description: Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.
- Full Text:
- Date Issued: 2007
The constitutional right to food in South Africa
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
The cost of credit in the micro-finance industry in South Africa
- Authors: Campbell, Jonathan
- Date: 2007
- Subjects: Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3667 , http://hdl.handle.net/10962/d1003182 , Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Description: This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.
- Full Text:
- Date Issued: 2007
- Authors: Campbell, Jonathan
- Date: 2007
- Subjects: Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3667 , http://hdl.handle.net/10962/d1003182 , Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Description: This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.
- Full Text:
- Date Issued: 2007
The development of organisational rights in South Africa
- Authors: Sohena, Siphiwo Clifford
- Date: 2007
- Subjects: Labor unions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10230 , http://hdl.handle.net/10948/841 , Labor unions -- Law and legislation -- South Africa
- Description: Under the previous Labour Relations Act of 1956, (herein after refered as old LRA) organisational rights in South Africa were conspicuous by their absence. In addition, theright to access was restricted by the Trespass Act No. 6 of 1959, which made it a criminal offence to enter land without thepermission of the owner or lawful occupier, except for a lawful reason. During the 1980’s and the first half of the 1990’s several trade union rights, including the right to engage in collective bargaining were established by the Industrial Court under its unfair labour practice jurisdiction. After 1994, South African courts were bound to uphold the basic rights entrenched in the Constitution, Act No. 108 of 1996, and the new Labour Relations Act, 66 of 1995, (herein after refered as new LRA) was promulgated. A new system of collective bargaining which is voluntary in nature was established in order to level the playing fields between employees and trade unions. The new LRA grants organisational rights to registered trade unions. The aim of this treatise is to consider and evaluate these rights. The main source of organisational rights in international public law is to be found in the International Labour Organisation’s Convention on Freedom of Association. Decisions of the International Labour Organisation’s bodies of supervision and interpretation have upheld the protection of various organisational rights, such as trade union access to the employer’s premises,representation of employees by the officials of their trade union, and the right of union officials to collect union dues. These rights have now been incorporated into our labour law system. In this treatise, the pre-1994 situation and the scenario after the 1994 democratic elections is analysed. The contents of these rights are considered as well as enforcement there-of.
- Full Text:
- Date Issued: 2007
- Authors: Sohena, Siphiwo Clifford
- Date: 2007
- Subjects: Labor unions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10230 , http://hdl.handle.net/10948/841 , Labor unions -- Law and legislation -- South Africa
- Description: Under the previous Labour Relations Act of 1956, (herein after refered as old LRA) organisational rights in South Africa were conspicuous by their absence. In addition, theright to access was restricted by the Trespass Act No. 6 of 1959, which made it a criminal offence to enter land without thepermission of the owner or lawful occupier, except for a lawful reason. During the 1980’s and the first half of the 1990’s several trade union rights, including the right to engage in collective bargaining were established by the Industrial Court under its unfair labour practice jurisdiction. After 1994, South African courts were bound to uphold the basic rights entrenched in the Constitution, Act No. 108 of 1996, and the new Labour Relations Act, 66 of 1995, (herein after refered as new LRA) was promulgated. A new system of collective bargaining which is voluntary in nature was established in order to level the playing fields between employees and trade unions. The new LRA grants organisational rights to registered trade unions. The aim of this treatise is to consider and evaluate these rights. The main source of organisational rights in international public law is to be found in the International Labour Organisation’s Convention on Freedom of Association. Decisions of the International Labour Organisation’s bodies of supervision and interpretation have upheld the protection of various organisational rights, such as trade union access to the employer’s premises,representation of employees by the officials of their trade union, and the right of union officials to collect union dues. These rights have now been incorporated into our labour law system. In this treatise, the pre-1994 situation and the scenario after the 1994 democratic elections is analysed. The contents of these rights are considered as well as enforcement there-of.
- Full Text:
- Date Issued: 2007
The impact of the bill of rights on extradition
- Authors: Tyler, Robyn Zoe
- Date: 2007
- Subjects: Extradition -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10282 , http://hdl.handle.net/10948/830 , Extradition -- South Africa , Criminal procedure -- South Africa
- Description: The process of extradition is a vital component of International Criminal Law as a means of ensuring the suppression and prevention of international crimes. It is the internationally accepted method used by states to surrender an offender back to the state where the alleged offence was committed so that such offender can be tried and punished. Without such process, and with the ease of modern global travel, offenders would, in all likelihood be able to escape prosecution and punishment. Most organized democratic societies recognize that the suppression of crime is necessary for peace and order in society and that extradition is an effective tool to be used to bring to justice a fugitive attempting to evade the law by fleeing to another country. What follows is a discussion, firstly on the theory of extradition and secondly on the effect that human rights has had on the law of extradition. The theory of extradition involves an analysis of extradition from its ancient roots to its position in society today. With regard to extradition in South Africa, reference is made to the various periods of the country’s history. The colonial era before South Africa acquired Republican status in 1961 is referred to in order to establish a basis for the present law of extradition in South Africa. The period during the apartheid era after achieving Republican status in 1961 is discussed in order to show how and why South Africa moved away from its common law roots based on English Law. This era is also of importance as it led to the introduction of the present Extradition Act 67 of 1962. Finally the current position spanning from 1994 to the law as it stands in South Africa today, as influenced by the introduction of Constitutional law, is examined. The rule on non-inquiry is also examined in order to compare the traditional approach by states, where state sovereignty was of paramount importance, with the modern trend of emphasis being placed on fundamental human rights. The methods in terms of which extradition is accomplished, both in South Africa and internationally is also discussed. Such reference to the theory and nature of extradition is done to provide general background on the complex issue to be discussed. The crux of the treatise relates to the impact that the rise in status of fundamental human rights has had on the extradition process. Reference will be made to aspects relating to the protection of the offender’s procedural rights as well as to the protection of the individuals right to life, dignity and bodily integrity. Such examination will refer to the position in South African law as well as the position on the international front. Attention is given to developments in case law as well as to how the courts approach the tension between extradition and human rights both locally and internationally. Finally, in conclusion it is submitted that the extradition process is the most effective procedure available to return an offender to the state seeking his prosecution. The process has however, in modern times adapted to uphold the rights of the offender whose return is requested. This can be seen from the provisions included in recent treaties and conventions, most notably the European Convention on Extradition to which South Africa became a party in 2003. Extradition is clearly concerned with the balancing of the offender’s human rights and the need for effective enforcement of criminal law.
- Full Text:
- Date Issued: 2007
- Authors: Tyler, Robyn Zoe
- Date: 2007
- Subjects: Extradition -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10282 , http://hdl.handle.net/10948/830 , Extradition -- South Africa , Criminal procedure -- South Africa
- Description: The process of extradition is a vital component of International Criminal Law as a means of ensuring the suppression and prevention of international crimes. It is the internationally accepted method used by states to surrender an offender back to the state where the alleged offence was committed so that such offender can be tried and punished. Without such process, and with the ease of modern global travel, offenders would, in all likelihood be able to escape prosecution and punishment. Most organized democratic societies recognize that the suppression of crime is necessary for peace and order in society and that extradition is an effective tool to be used to bring to justice a fugitive attempting to evade the law by fleeing to another country. What follows is a discussion, firstly on the theory of extradition and secondly on the effect that human rights has had on the law of extradition. The theory of extradition involves an analysis of extradition from its ancient roots to its position in society today. With regard to extradition in South Africa, reference is made to the various periods of the country’s history. The colonial era before South Africa acquired Republican status in 1961 is referred to in order to establish a basis for the present law of extradition in South Africa. The period during the apartheid era after achieving Republican status in 1961 is discussed in order to show how and why South Africa moved away from its common law roots based on English Law. This era is also of importance as it led to the introduction of the present Extradition Act 67 of 1962. Finally the current position spanning from 1994 to the law as it stands in South Africa today, as influenced by the introduction of Constitutional law, is examined. The rule on non-inquiry is also examined in order to compare the traditional approach by states, where state sovereignty was of paramount importance, with the modern trend of emphasis being placed on fundamental human rights. The methods in terms of which extradition is accomplished, both in South Africa and internationally is also discussed. Such reference to the theory and nature of extradition is done to provide general background on the complex issue to be discussed. The crux of the treatise relates to the impact that the rise in status of fundamental human rights has had on the extradition process. Reference will be made to aspects relating to the protection of the offender’s procedural rights as well as to the protection of the individuals right to life, dignity and bodily integrity. Such examination will refer to the position in South African law as well as the position on the international front. Attention is given to developments in case law as well as to how the courts approach the tension between extradition and human rights both locally and internationally. Finally, in conclusion it is submitted that the extradition process is the most effective procedure available to return an offender to the state seeking his prosecution. The process has however, in modern times adapted to uphold the rights of the offender whose return is requested. This can be seen from the provisions included in recent treaties and conventions, most notably the European Convention on Extradition to which South Africa became a party in 2003. Extradition is clearly concerned with the balancing of the offender’s human rights and the need for effective enforcement of criminal law.
- Full Text:
- Date Issued: 2007
The legal history of in-transit robbery
- Authors: Coetzer, André Lodewyk
- Date: 2007
- Subjects: Robbery -- History , Robbery -- South Africa -- History
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10263 , http://hdl.handle.net/10948/829 , Robbery -- History , Robbery -- South Africa -- History
- Description: The crime of in-transit robbery is a sub-specie of the common law crime of robbery, which in essence is a crime of theft with violence. Robbery had evolved from begging, where beggars would harass their victims for money or items of value and then elevating their begging efforts to threats of violence, and in certain instances the usage of physical violence to solicit alms. As soon as road transport became prominent in society, the incidence of in-transit robbery increased where violence was used to overcome any form of resistance from the victim. During sea-faring transportation, piracy occurred using similar methods of violence to obtain goods from victims. In-transit robbery has undergone many changes in terms of modus operandi. From the early days of violent begging during the Roman Empire it has now become a greed driven, carefully planned crime, which is executed with military precision with high technology weapons of war. Robbery has advanced in judicial terms from a non-codified crime to a specific defined crime which carries prescribed minimum sentencing as punishment. , Abstract
- Full Text:
- Date Issued: 2007
- Authors: Coetzer, André Lodewyk
- Date: 2007
- Subjects: Robbery -- History , Robbery -- South Africa -- History
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10263 , http://hdl.handle.net/10948/829 , Robbery -- History , Robbery -- South Africa -- History
- Description: The crime of in-transit robbery is a sub-specie of the common law crime of robbery, which in essence is a crime of theft with violence. Robbery had evolved from begging, where beggars would harass their victims for money or items of value and then elevating their begging efforts to threats of violence, and in certain instances the usage of physical violence to solicit alms. As soon as road transport became prominent in society, the incidence of in-transit robbery increased where violence was used to overcome any form of resistance from the victim. During sea-faring transportation, piracy occurred using similar methods of violence to obtain goods from victims. In-transit robbery has undergone many changes in terms of modus operandi. From the early days of violent begging during the Roman Empire it has now become a greed driven, carefully planned crime, which is executed with military precision with high technology weapons of war. Robbery has advanced in judicial terms from a non-codified crime to a specific defined crime which carries prescribed minimum sentencing as punishment. , Abstract
- Full Text:
- Date Issued: 2007
The review function of the labour court
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007