Political parties in South African law
- Authors: Tiry, Zaahira
- Date: 2012
- Subjects: Political parties -- Law and legislation -- South Africa , Politics -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10285 , http://hdl.handle.net/10948/d1012414 , Political parties -- Law and legislation -- South Africa , Politics -- Law and legislation -- South Africa
- Description: This dissertation is a literature study of the legal regime of political parties in post-apartheid South Africa. A constitutional perspective is adopted throughout the study in order to confine the topic to the realm of South African law. Hence, the focus of the study is to identify legal rights contained in chapter two of the Constitution and to also identify other provisions of the Constitution that have a bearing on political parties. As mentioned in the conclusion, section 19 of the Constitution, set the scene for the development of this study. An analysis of the constitutional provisions highlighted in this study, case law and present legislation dealing with political parties reveals that there is a need for comparative research and the adoption of adequate legislation to regulate the functioning of political parties in South Africa. It is submitted that the regulation of parties by statute is required to ensure a just political order whereby the functioning of political parties is in line with the Constitution.
- Full Text:
- Date Issued: 2012
- Authors: Tiry, Zaahira
- Date: 2012
- Subjects: Political parties -- Law and legislation -- South Africa , Politics -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10285 , http://hdl.handle.net/10948/d1012414 , Political parties -- Law and legislation -- South Africa , Politics -- Law and legislation -- South Africa
- Description: This dissertation is a literature study of the legal regime of political parties in post-apartheid South Africa. A constitutional perspective is adopted throughout the study in order to confine the topic to the realm of South African law. Hence, the focus of the study is to identify legal rights contained in chapter two of the Constitution and to also identify other provisions of the Constitution that have a bearing on political parties. As mentioned in the conclusion, section 19 of the Constitution, set the scene for the development of this study. An analysis of the constitutional provisions highlighted in this study, case law and present legislation dealing with political parties reveals that there is a need for comparative research and the adoption of adequate legislation to regulate the functioning of political parties in South Africa. It is submitted that the regulation of parties by statute is required to ensure a just political order whereby the functioning of political parties is in line with the Constitution.
- Full Text:
- Date Issued: 2012
Providing basic conditions in vulnerable sectors
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
Regulating cartel activity in South Africa
- Authors: Mushi, Walter
- Date: 2012
- Subjects: South Africa. -- Competition Act, 1998 , Antitrust law -- South Africa , Competition
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10286 , http://hdl.handle.net/10948/d1018685
- Description: Competition among firms is a central feature in all free market economies such as South Africa. One of the biggest threats to competition is the presence of cartels in markets. Cartels are firms which collude and compete unfairly in order to obtain monopoly-like profits. For more than fifty years South Africa’s economic landscape has been dominated by a vast network of cartels invital industries, such as bread, cement and fertiliser. South Africa promulgated the Competition Act 89 of 1998 to eradicate cartels and promote and maintain competition within the South African economy. The Competition Act 89 of 1998 prohibits cartel activity and provides for a fine of 10% of turn over for firms found to have engaged in cartel activity. For a variety of reasons, these administrative fines have failed to deter firms from commencing and/or continuing to engage in cartel activity. This is evidenced by the increasing number of firms engaged in large -scale cartels in essential industries, such as construction and food. Public outcry and global trends have persuaded legislators to enactment more stringent penalties in the Competition Amendment Act 1 of 2009. Section 12 of the Competition Amendment Act , which inserts section 73A, creates a cartel of fence in terms of which a director who causes his firm to engage in cartel activity faces ten year imprisonment or a fine of R500, 000. This research shall critically analyse the Competition Amendment Acts effect on deterring cartel activity in South Africa. Despite the legislators’ aim to provide a bigger deterrent for engaging in cartel activity, section 73A of the Competition Amendment Act arouses scrutiny. Firstly, the promulgation of the new cartel offence is contrary to the decimalisation trend in South African company law which recognises the difficulty in enforcing complex regulatory offences with criminal provisions. Secondly, Section 73(5)A appears to infringe an accused director's right to be presumed innocent. Lastly there are co-ordination issues between the National Prosecuting Authority and the Corporate Leniency Policy relating to the granting of prose cutorial immunity for firms which cooperate with the Competition Commission. There search will out line these problems in full. With regards to the problems caused by section 73A, the research will use a comparative analysis with the positionin the United States. Of all the jurisdictions which criminalise cartel activity, the United States was one of the earliest and the most prolific insecuring convictions for directors who cause their firms to engage in cartel activity. The United States has taken innovative steps to supplement their public cartel enforcement drive such as the prosecution of international cartels and the use of private actions. In this regard, the research will extrapolate favourable cartel enforcement measures from the United States for recommendation in order to assist with South Africa’s cartel enforcement and alleviate the problems caused by section 73A, outlined above.
- Full Text:
- Date Issued: 2012
- Authors: Mushi, Walter
- Date: 2012
- Subjects: South Africa. -- Competition Act, 1998 , Antitrust law -- South Africa , Competition
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10286 , http://hdl.handle.net/10948/d1018685
- Description: Competition among firms is a central feature in all free market economies such as South Africa. One of the biggest threats to competition is the presence of cartels in markets. Cartels are firms which collude and compete unfairly in order to obtain monopoly-like profits. For more than fifty years South Africa’s economic landscape has been dominated by a vast network of cartels invital industries, such as bread, cement and fertiliser. South Africa promulgated the Competition Act 89 of 1998 to eradicate cartels and promote and maintain competition within the South African economy. The Competition Act 89 of 1998 prohibits cartel activity and provides for a fine of 10% of turn over for firms found to have engaged in cartel activity. For a variety of reasons, these administrative fines have failed to deter firms from commencing and/or continuing to engage in cartel activity. This is evidenced by the increasing number of firms engaged in large -scale cartels in essential industries, such as construction and food. Public outcry and global trends have persuaded legislators to enactment more stringent penalties in the Competition Amendment Act 1 of 2009. Section 12 of the Competition Amendment Act , which inserts section 73A, creates a cartel of fence in terms of which a director who causes his firm to engage in cartel activity faces ten year imprisonment or a fine of R500, 000. This research shall critically analyse the Competition Amendment Acts effect on deterring cartel activity in South Africa. Despite the legislators’ aim to provide a bigger deterrent for engaging in cartel activity, section 73A of the Competition Amendment Act arouses scrutiny. Firstly, the promulgation of the new cartel offence is contrary to the decimalisation trend in South African company law which recognises the difficulty in enforcing complex regulatory offences with criminal provisions. Secondly, Section 73(5)A appears to infringe an accused director's right to be presumed innocent. Lastly there are co-ordination issues between the National Prosecuting Authority and the Corporate Leniency Policy relating to the granting of prose cutorial immunity for firms which cooperate with the Competition Commission. There search will out line these problems in full. With regards to the problems caused by section 73A, the research will use a comparative analysis with the positionin the United States. Of all the jurisdictions which criminalise cartel activity, the United States was one of the earliest and the most prolific insecuring convictions for directors who cause their firms to engage in cartel activity. The United States has taken innovative steps to supplement their public cartel enforcement drive such as the prosecution of international cartels and the use of private actions. In this regard, the research will extrapolate favourable cartel enforcement measures from the United States for recommendation in order to assist with South Africa’s cartel enforcement and alleviate the problems caused by section 73A, outlined above.
- Full Text:
- Date Issued: 2012
Sexual abuse within the context of public education
- Authors: Strydom, Jeanette
- Date: 2012
- Subjects: Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10238 , http://hdl.handle.net/10948/d1012156 , Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Description: The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
- Full Text:
- Date Issued: 2012
- Authors: Strydom, Jeanette
- Date: 2012
- Subjects: Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10238 , http://hdl.handle.net/10948/d1012156 , Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Description: The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
- Full Text:
- Date Issued: 2012
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
Termination of employment contract by operation of law in the education sector: the constitutionality and validity of the deeming provisions
- Authors: Mpati, Lungisa
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10200 , http://hdl.handle.net/10948/1600 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Description: Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.
- Full Text:
- Date Issued: 2012
- Authors: Mpati, Lungisa
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10200 , http://hdl.handle.net/10948/1600 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Description: Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.
- Full Text:
- Date Issued: 2012
The effect of South African labour legislation on refugees and migrants
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
The effects of climate change on the realisation of the right to adequate food in Kenya
- Khayundi, Francis Mapati Bulimo
- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
- Full Text:
- Date Issued: 2012
- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
- Full Text:
- Date Issued: 2012
The efficacy of the United Nations in conflict resolution: a study of the response of the security council to the Darfur conflict in the Sudan
- Authors: Fabrice, Tambe Endoh
- Date: 2012
- Subjects: Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11119 , http://hdl.handle.net/10353/d1006233 , Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Description: Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
- Full Text:
- Date Issued: 2012
- Authors: Fabrice, Tambe Endoh
- Date: 2012
- Subjects: Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11119 , http://hdl.handle.net/10353/d1006233 , Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Description: Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
- Full Text:
- Date Issued: 2012
The establishment of an African criminal court: strengths and weaknesses
- Authors: Philimon, Levina Kiiza
- Date: 2012
- Subjects: International criminal law -- Africa , Criminal courts -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10288 , http://hdl.handle.net/10948/d1019828
- Description: This treatise addresses the possible creation of an African criminal court for individual criminal responsibility for crime of genocide, crimes against humanity, and war crimes. It does so by critically analysing the Statutes of Special Court of Sierra Leone, International Criminal Tribunal for Rwanda, and Rome Statute of the International Criminal Court in relation to the provisions addressing the principle of individual criminal responsibility, jurisdiction, amnesty and immunity. Another aim is to indicate the strength and weaknesses of the cited statutes in relation to the above provisions. Finally a further aim is to provide an analysis of the statutes, and any other international law applicable and determine whether Africa needs a separate criminal court. The principle conclusion is that statutes are facing challenges in relations to the provisions above. It is established that Africa does not have a regional criminal court and the African Union has attempted to extend jurisdiction of the African Court of Justice and Human Rights to criminal jurisdiction but the process has amounted to heavy criticism and unforeseen legal implications. It is eventually concluded that Africa may consider the creation of a separate criminal court for the future and such a court is currently not needed. Support should be given to the ICC.
- Full Text:
- Date Issued: 2012
- Authors: Philimon, Levina Kiiza
- Date: 2012
- Subjects: International criminal law -- Africa , Criminal courts -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10288 , http://hdl.handle.net/10948/d1019828
- Description: This treatise addresses the possible creation of an African criminal court for individual criminal responsibility for crime of genocide, crimes against humanity, and war crimes. It does so by critically analysing the Statutes of Special Court of Sierra Leone, International Criminal Tribunal for Rwanda, and Rome Statute of the International Criminal Court in relation to the provisions addressing the principle of individual criminal responsibility, jurisdiction, amnesty and immunity. Another aim is to indicate the strength and weaknesses of the cited statutes in relation to the above provisions. Finally a further aim is to provide an analysis of the statutes, and any other international law applicable and determine whether Africa needs a separate criminal court. The principle conclusion is that statutes are facing challenges in relations to the provisions above. It is established that Africa does not have a regional criminal court and the African Union has attempted to extend jurisdiction of the African Court of Justice and Human Rights to criminal jurisdiction but the process has amounted to heavy criticism and unforeseen legal implications. It is eventually concluded that Africa may consider the creation of a separate criminal court for the future and such a court is currently not needed. Support should be given to the ICC.
- Full Text:
- Date Issued: 2012
The impact of multimodal forms of transport on a cargo carrier's liability
- Authors: Etape, Nnane Roland
- Date: 2012
- Subjects: Containerization , Unitized cargo systems
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10251 , http://hdl.handle.net/10948/d1020176
- Description: International multimodal transport continues to grow exponentially, while the relevant international legal framework becomes increasingly fragmented and complex. The establishment of a widely acceptable uniform international legal framework for multimodal transport contracts has proven to be extremely difficult, in spite of the various attempts initiated by some international organizations. Owing to the increasing use of containers to consolidate cargo, multimodal transport practice has become inevitable in the field of international trade based on its numerous advantages over the traditional unimodal carriage practices. Therefore, the urgent need of an internationally legal instrument to govern liability issues arising from multimodal carriage transactions is highly requested by trading parties. This research, however, present the difficulties involve when trying to establish liability issues arising from multimodal carriage claims and the impact it has on contracting parties who are never certain on which regime their contracts are based, instead depends on already existing unimodal liability regimes to sort out their disputes. The strengths and weaknesses of the two most recent attempts at producing a uniform legal regime for multimodal transport namely: The United Nations Convention on International Multimodal Transport of Goods 1980 (The UN Convention of 1980) and The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) are also examined in this research as none of these attempts appears to be a tenable solution. However, in the absence of a truly accepted international uniform legal regime for multimodal transport contracts, some nations, regional and sub-regional laws and regulations on multimodal transport contracts have been initiated. Despite the recognition of the Rotterdam Rules in certain jurisdictions, it will probably fail to achieve the aim of uniformity as intended because it’s merely a “maritime-plus” Convention. With the continuous development of containerization, there is an imperative need to have a multimodal transport convention which is broad enough in scope to govern the rights and liabilities of all parties in a multimodal carriage contracts, including inland carriers and their contractors or sub-carriers (referred to as performing parties) in the new Convention.
- Full Text:
- Date Issued: 2012
- Authors: Etape, Nnane Roland
- Date: 2012
- Subjects: Containerization , Unitized cargo systems
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10251 , http://hdl.handle.net/10948/d1020176
- Description: International multimodal transport continues to grow exponentially, while the relevant international legal framework becomes increasingly fragmented and complex. The establishment of a widely acceptable uniform international legal framework for multimodal transport contracts has proven to be extremely difficult, in spite of the various attempts initiated by some international organizations. Owing to the increasing use of containers to consolidate cargo, multimodal transport practice has become inevitable in the field of international trade based on its numerous advantages over the traditional unimodal carriage practices. Therefore, the urgent need of an internationally legal instrument to govern liability issues arising from multimodal carriage transactions is highly requested by trading parties. This research, however, present the difficulties involve when trying to establish liability issues arising from multimodal carriage claims and the impact it has on contracting parties who are never certain on which regime their contracts are based, instead depends on already existing unimodal liability regimes to sort out their disputes. The strengths and weaknesses of the two most recent attempts at producing a uniform legal regime for multimodal transport namely: The United Nations Convention on International Multimodal Transport of Goods 1980 (The UN Convention of 1980) and The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) are also examined in this research as none of these attempts appears to be a tenable solution. However, in the absence of a truly accepted international uniform legal regime for multimodal transport contracts, some nations, regional and sub-regional laws and regulations on multimodal transport contracts have been initiated. Despite the recognition of the Rotterdam Rules in certain jurisdictions, it will probably fail to achieve the aim of uniformity as intended because it’s merely a “maritime-plus” Convention. With the continuous development of containerization, there is an imperative need to have a multimodal transport convention which is broad enough in scope to govern the rights and liabilities of all parties in a multimodal carriage contracts, including inland carriers and their contractors or sub-carriers (referred to as performing parties) in the new Convention.
- Full Text:
- Date Issued: 2012
The legal consequences of alcohol and drugs in the workplace
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
The recognition of victims rights of sexual offences
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
The rights of employees following a transfer of an undertaking in terms of section 197 of the Labour Relation Act in an outsourcing context
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
Unfair discrimination and affirmative action in the South African Police Service
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
A comparative analysis of the development of performers' rights in the United Kingdom and South Africa
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
A comparative analysis of the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
An analysis of the elements of genocide with reference to the South African farmer's case
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
An evaluation of South Africa's legislation to combat organised crime
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011