The effect of recent amendments to the LRA within the context of collective bargaining
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017
- Authors: Kandile, Msondezi Gorden
- Date: 2017
- Subjects: Collective bargaining -- South Africa Collective labor agreements -- South Africa , Labor laws and legislation -- South Africa South Africa -- Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17831 , vital:28459
- Description: The Labour Relations Act, 1995 makes no provision of a legally enforceable duty to bargain, but affords certain rights to unions such as organisational rights. Although employers are obliged to grant these rights to representative unions, they are not compelled to engage in bargaining with them as there is no duty to negotiate. However, the refusal to bargain will result in power play in order to convince the other party to negotiate. If an employer refuses to negotiate with a union, the union is able to strike without any fear of dismissal of its members, provided that the strike takes place with requirements of the Act. The questions that need to be answered are amongst others whether the amendments on organisational rights will truly broaden access to section 14 and 16 rights of the Labour Relations Act? Further than that, to investigate whether these amendments will lead a decline in industrial action related to organisational rights. It also becomes imperative to find whether these arrangements will enable commissioners to carry out the mandate of minimizing the proliferation of trade unions. The study aims to provide understanding of the principles of collective bargaining in the workplace. This in turn promotes better understanding of the rights enshrined in section 23(5) of the Constitution which provides that trade unions, employers’ organisation and employers have the right to engage in collective bargaining. This right is given effect to the Labour Relations Act as amended. The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism in three cases in the South African National Defence Force. They are currently the main cases dealing with this issue in South Africa. The implications that a trade union is entitled to embark on strike action in order to obtain organisational rights in circumstances where it is not regarded as sufficiently representative, provides some form of relief for minority unions. Against this background, the critical legal question is the impact of recent amendments to the Labour Relations Act within the context of collective bargaining.
- Full Text:
- Date Issued: 2017
Noise pollution at sea
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
The defence of inherent requirements of the job in unfair discrimination cases
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
Substantive equality and the defence of affirmative-action
- Keith-Bandath, Rasheed Ethan
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
Public sector employees and their right to just administrative action
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
The return-to-work policy for injured and diseased workers
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
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
An examination of employee participation as provided for in the Labour Relations Act 66 of 1995
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
A study of the powers of the Swazi monarch in terms of Swazi law and custom past, present and the future
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
The status of the Al Qaeda and Taliban detainees at Guantanamo bay
- Authors: Kilian, Clive Linton
- Date: 2007
- Subjects: Prisoners of war -- Legal status, laws, etc. -- Cuba -- Guantańamo Bay Naval Base , Detention of persons -- Guańtanamo Bay Naval Base (Cuba) , Human rights -- Government policy -- United States
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10278 , http://hdl.handle.net/10948/826 , Prisoners of war -- Legal status, laws, etc. -- Cuba -- Guantańamo Bay Naval Base , Detention of persons -- Guańtanamo Bay Naval Base (Cuba) , Human rights -- Government policy -- United States
- Description: The United States of America has in its custody several hundred Taliban and Al Qaeda combatants who were captured after the September 11, 2001 attack and during the war in Afghanistan. These prisoners are incarcerated at the Guantanamo naval base in Cuba. The treatment given to these detainees has elicited widespread criticism, as well as unprecedented intellectual and legal debates regarding prisoners of war. In order to fully understand the position of the Guantanamo Bay detainees, one has to be aware of the origins of the prisoner-of-war phenomenon. From biblical times, through the countless conflicts that were waged across the globe through the ages, the concept of “prisoner of war” gradually evolved. Growing concern for the plight of prisoners of war was paralleled by the development of the laws of war, which sought to regulate the conduct of combatants during an armed conflict. The laws of war that have bearing on modern day States are those documented in the Geneva Conventions. The Geneva Conventions regulate armed conflicts and set out the requirements for prisoners of war, as well as their trial rights. The United States, in declaring the Guantanamo Bay detainees “unlawful combatants” or “illegal enemy combatants”, terms which are undefined in International Law, have sought to evade the prescripts of the Geneva Conventions. In direct contravention of the Geneva Conventions, the Guantanamo Bay detainees are denied the right to humane treatment, a fair trial and due process of the law. Prior to Hamdan vs Rumsfeld, the United States’ position was challenged with very little success. The Supreme Court, in Hamdan vs Rumsfeld, directed the president to accord the detainees the protections of the Third Geneva Convention. The relief brought by this decision was very short lived. In September 2006 the United States Congress passed the Military Commissions Act of 2006. This Bill gives the president of the United States unfettered power in dealing with anyone suspected of being a threat to the State, as well as the authorisation to interpret and apply the Geneva Conventions according to his sole discretion.
- Full Text:
- Date Issued: 2007
- Authors: Kilian, Clive Linton
- Date: 2007
- Subjects: Prisoners of war -- Legal status, laws, etc. -- Cuba -- Guantańamo Bay Naval Base , Detention of persons -- Guańtanamo Bay Naval Base (Cuba) , Human rights -- Government policy -- United States
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10278 , http://hdl.handle.net/10948/826 , Prisoners of war -- Legal status, laws, etc. -- Cuba -- Guantańamo Bay Naval Base , Detention of persons -- Guańtanamo Bay Naval Base (Cuba) , Human rights -- Government policy -- United States
- Description: The United States of America has in its custody several hundred Taliban and Al Qaeda combatants who were captured after the September 11, 2001 attack and during the war in Afghanistan. These prisoners are incarcerated at the Guantanamo naval base in Cuba. The treatment given to these detainees has elicited widespread criticism, as well as unprecedented intellectual and legal debates regarding prisoners of war. In order to fully understand the position of the Guantanamo Bay detainees, one has to be aware of the origins of the prisoner-of-war phenomenon. From biblical times, through the countless conflicts that were waged across the globe through the ages, the concept of “prisoner of war” gradually evolved. Growing concern for the plight of prisoners of war was paralleled by the development of the laws of war, which sought to regulate the conduct of combatants during an armed conflict. The laws of war that have bearing on modern day States are those documented in the Geneva Conventions. The Geneva Conventions regulate armed conflicts and set out the requirements for prisoners of war, as well as their trial rights. The United States, in declaring the Guantanamo Bay detainees “unlawful combatants” or “illegal enemy combatants”, terms which are undefined in International Law, have sought to evade the prescripts of the Geneva Conventions. In direct contravention of the Geneva Conventions, the Guantanamo Bay detainees are denied the right to humane treatment, a fair trial and due process of the law. Prior to Hamdan vs Rumsfeld, the United States’ position was challenged with very little success. The Supreme Court, in Hamdan vs Rumsfeld, directed the president to accord the detainees the protections of the Third Geneva Convention. The relief brought by this decision was very short lived. In September 2006 the United States Congress passed the Military Commissions Act of 2006. This Bill gives the president of the United States unfettered power in dealing with anyone suspected of being a threat to the State, as well as the authorisation to interpret and apply the Geneva Conventions according to his sole discretion.
- Full Text:
- Date Issued: 2007
Public service commission grievance recommendation process
- Authors: King, Lyn Carol
- Date: 2017
- Subjects: Civil service -- South Africa Grievance procedures -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18002 , vital:28552
- Description: The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.
- Full Text:
- Date Issued: 2017
- Authors: King, Lyn Carol
- Date: 2017
- Subjects: Civil service -- South Africa Grievance procedures -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18002 , vital:28552
- Description: The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.
- Full Text:
- Date Issued: 2017
The recognition and protection of the interest of landlords within the framework of the rental housing act 50 of 1999
- Authors: Klos, Tamara Amy
- Date: 2010
- Subjects: Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10221 , http://hdl.handle.net/10948/1171 , Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Description: This dissertation analyses the South African Rental Housing Act 50 of 1999 ("the RHA") with the aim of determining whether the RHA sufficiently protects the landlords‘ rights and interests as opposed to those of tenants (which it does indeed safeguard). Due to the current saturation of rental property in South Africa, landlords are no longer in an advantageous a position as before. In fact, the RHA was introduced to redress the imbalance caused by discrimination against tenants. However, times have changed. The researcher submits that the RHA needs to be re-examined in light perception of the landlord as a consumer. Having regard to both common and foreign law, the researcher identified the following four fundamental legal and practical rights on the part of the landlord: the right to freely contract; the right to safeguard financial interests; the right to safeguard proprietary interests; and the right to evict a defaulting tenant. The research reveals that the RHA does not give adequate recognition to these fundamental legal rights, and accordingly does not sufficiently protect the landlord as a consumer. In total nineteen recommendations how the RHA can adequately recognize and protect the landlord‘s interests are made.
- Full Text:
- Date Issued: 2010
- Authors: Klos, Tamara Amy
- Date: 2010
- Subjects: Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10221 , http://hdl.handle.net/10948/1171 , Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Description: This dissertation analyses the South African Rental Housing Act 50 of 1999 ("the RHA") with the aim of determining whether the RHA sufficiently protects the landlords‘ rights and interests as opposed to those of tenants (which it does indeed safeguard). Due to the current saturation of rental property in South Africa, landlords are no longer in an advantageous a position as before. In fact, the RHA was introduced to redress the imbalance caused by discrimination against tenants. However, times have changed. The researcher submits that the RHA needs to be re-examined in light perception of the landlord as a consumer. Having regard to both common and foreign law, the researcher identified the following four fundamental legal and practical rights on the part of the landlord: the right to freely contract; the right to safeguard financial interests; the right to safeguard proprietary interests; and the right to evict a defaulting tenant. The research reveals that the RHA does not give adequate recognition to these fundamental legal rights, and accordingly does not sufficiently protect the landlord as a consumer. In total nineteen recommendations how the RHA can adequately recognize and protect the landlord‘s interests are made.
- Full Text:
- Date Issued: 2010
Provocation as a defence in English and South African criminal law
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
Comparison of taxation reforms regarding retirement funding between South Africa and the United Kingdom
- Authors: Kruger, Leander
- Date: 2017
- Subjects: Pension trusts -- Law and legislation -- South Africa Pension trusts -- Law and legislation -- Great Britain , Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- Great Britain Pensions -- Law and legislation -- South Africa Pensions -- Law and legislation -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18200 , vital:28588
- Description: The purpose of this study was to review the provision of public and private retirement funding in both South Africa and the United Kingdom and the role of taxation in encouraging greater private provision for retirement. The study described the basis of taxation and determination of ‘taxable income’ in each jurisdiction, before addressing the relationship between taxation and retirement funding in each jurisdiction respectively. Both jurisdictions have introduced significant reforms of their systems of retirement funding and these reforms were accordingly addressed in the present research. The study compared the two jurisdictions based on the above mentioned areas to determine similarities or differences. The study concluded with recommendations, these being that South Africa should assess the feasibility of providing greater State provided retirement funding by possibly including a mandatory contribution, such as that used by the UK for its single-tier flat rate New State Pension. A further recommendation was that South Africa should encourage greater provision of private retirement funding by considering even greater tax deductions for contributions.
- Full Text:
- Date Issued: 2017
- Authors: Kruger, Leander
- Date: 2017
- Subjects: Pension trusts -- Law and legislation -- South Africa Pension trusts -- Law and legislation -- Great Britain , Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- Great Britain Pensions -- Law and legislation -- South Africa Pensions -- Law and legislation -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18200 , vital:28588
- Description: The purpose of this study was to review the provision of public and private retirement funding in both South Africa and the United Kingdom and the role of taxation in encouraging greater private provision for retirement. The study described the basis of taxation and determination of ‘taxable income’ in each jurisdiction, before addressing the relationship between taxation and retirement funding in each jurisdiction respectively. Both jurisdictions have introduced significant reforms of their systems of retirement funding and these reforms were accordingly addressed in the present research. The study compared the two jurisdictions based on the above mentioned areas to determine similarities or differences. The study concluded with recommendations, these being that South Africa should assess the feasibility of providing greater State provided retirement funding by possibly including a mandatory contribution, such as that used by the UK for its single-tier flat rate New State Pension. A further recommendation was that South Africa should encourage greater provision of private retirement funding by considering even greater tax deductions for contributions.
- Full Text:
- Date Issued: 2017
The employment relationship of employees employed in terms of section 56 and 57 in the local government sector
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
Life in the suburbs after "Grootboom": the role of local government in realising housing rights in the Eastern Cape
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008
The auditor's duty of reasonable care and skill and the expectation to detect fraud
- Kujinga, Benjamin Tanyaradzwa
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
The constitutionality of the Criminal Law (Forensic Procedures) Amendment Act
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017
- Authors: Laing, Samantha Robyn
- Date: 2017
- Subjects: DNA fingerprinting -- Law and legislation -- South Africa Criminal procedure -- South Africa , Evidence, Criminal -- South Africa Forensic sciences -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18619 , vital:28692
- Description: The Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 came into operation in January 2015. The Act makes provision for the establishment of a National Forensic DNA Database, which will store DNA profiles of certain groups of people. This research will discuss the establishment of a forensic DNA database in South Africa. The legal position in the United States of America will also be considered, with specific reference to the states of Maryland, California and New York. This research will focus predominantly on the collection of DNA samples and profiles from arrestees. When such samples are allowed to be collected, what offences warrant the collection of such samples and the period within which the DNA samples need to be destroyed. Collecting DNA samples and profiles from certain persons could potentially violate particular rights in the Bill of Rights. The rights to privacy, bodily integrity, equality and human dignity are discussed as well as the approach the courts have adopted in dealing with such infringements or possible infringements. This research furthermore deals with the historical developments of DNA evidence and contains a brief discussion on expert evidence. This research also deals with the evidential value of DNA evidence, as well as possible problems faced by prosecutors and defence attorneys when dealing with DNA evidence. The Criminal Law (Forensic Procedures) Amendment Act is still very new, and therefore, there is not yet much case law in South Africa specifically dealing with the sections of the said Act. This research makes submissions and recommendations regarding certain sections of the Act, as well as the overall constitutionality of the Act.
- Full Text:
- Date Issued: 2017