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The labour law consequences of a transfer of a business

  • Authors: Abader, Mogamad Shahied
  • Date: 2003
  • Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
  • Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
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  • Date Issued: 2003

International legal protection of women's reproductive rights: a comparative analysis of abortion laws and policies in four jurisdictions-Nigeria, Ghana, South Africa and U.S.A.

  • Authors: Abiodun, Adeleke Funminiyi
  • Date: 2010-10
  • Subjects: Abortion -- Law and legislation , Reproductive right
  • Language: English
  • Type: Doctoral theses , text
  • Identifier: http://hdl.handle.net/10353/25839 , vital:64491
  • Description: The subject matter of abortion law is extremely broad and multi-disciplinary. While naturally having its basis in criminal and constitutional law of individual states, the global development of abortion discourse has been influenced by the need to protect the reproductive rights of women as a sub-set of international human rights laws; thereby advocating not only the decriminalisation of abortion but also, that individual State should take affirmative actions in promoting abortion as a right for every woman. However, that induced abortion is a punishable criminal act or a “protectable” woman’s reproductive right remains controversial due to the plethora of perspectives, beliefs and reservations held by different groups of people which are multi-dimensional and contradictory. This thesis therefore attempts a comparative study of abortion laws and policies in four jurisdictions: Nigeria and Ghana, operating criminalised abortion laws, South Africa and United States which operate liberalised/permissive abortion laws and policies. The study basically examines the legal status and reproductive rights of women to legal and safe abortion within the existing legal framework of national laws of the four selected jurisdictions vis-à-vis the legal protection offered by various international instruments on human rights. While we show that strict and restrictive abortion laws, and also, failure of States to create conditions for safe abortion constitute infractions of the reproductive rights of women, we submit further that over-liberalisation of abortion laws and policies could also amount to infringement of the basic rights of other people, thus there is need to ensure a legal and acceptable balance. The study finally acknowledges the role of international human rights laws in the protection of women’s right to legal and safe abortion but asserts that there can be no universally acceptable morality to which the whole world could subsume in term of women’s right to abortion due to the interplay of socio-cultural, religious, and moral affiliations of the people in different communities. , Thesis (LLD) -- Faculty of Law, 2010
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  • Date Issued: 2010-10

The protection against child labour in South Africa

  • Authors: Abrahams, Collis
  • Date: 2019
  • Subjects: Child labor
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/40204 , vital:35986
  • Description: This treatise seeks to describe the legal protection of children against child labour in South Africa. It does so within the context of international-law-protection in the form of Conventions of the International Labour Organisation. The treatise distinguishes between the concepts of child labour and child work and traces the history of international law prohibiting and regulating child labour. The two most important ILO Conventions, Convention 138 of 1973 and 182 of 1998 are considered in some detail before the national legislature is explained and analysed. From the discussion it is apparent that South Africa is giving effect to the applicable ILO Conventions. Not only does national legislation prohibit child labour, the state also adopted nation-wide programmes to eradicate child labour. Despite the efforts there is still room for improvement. The fight to eradicate child labour must continue!
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  • Date Issued: 2019

The unfair labour practice relating to promotion

  • Authors: Abrahams, Dawood
  • Date: 2004
  • Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
  • Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
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  • Date Issued: 2004

The education sector as an essential service

  • Authors: Adams, Anton John
  • Date: 2011
  • Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
  • Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
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  • Date Issued: 2011

Traditional and cultural practices and the rights of women : a study of widowhood practices among the Akans in Ghana

  • Authors: Afari-Twumasi, Lucy
  • Date: 2016
  • Subjects: Widows -- Legal status, laws, etc. -- Ghana Widowhood -- Ghana Akan (African people) -- Social life and customs
  • Language: English
  • Type: Thesis , Masters , MPhil
  • Identifier: http://hdl.handle.net/10353/2844 , vital:28106
  • Description: The study investigates the human rights violations that underlie widowhood practices in Cape Coast and Komenda in the Central Region of Ghana. Review of the relevant literature on widowhood practices suggests that widowhood practices are a global cultural phenomenon, which is not confined to Sub-Sahara Africa. A survey of relevant studies on the phenomenon suggests that there are two competing perceptions on African widowhood practices: (1) a dominant negative perspective and (2) a minor positive perspective. The dominant negative perspective, which receives overwhelming research attention, focuses only on the negative characteristics of widowhood while the minor positive perspective which receives scanty research attention, rejects the criticisms levelled against widowhood practices as being externally influenced by Christianity and Western Feminism. Various stakeholders within the Akan community were given an opportunity to retell their own versions of widowhood practices. In order to achieve this purpose, the research extracted competing narratives from all the multiple sample subgroups of the proposed study: widows; widow family heads; chiefs; widowhood ritual practitioners; elderly female supervisors of widowhood practices; an official from the Commission for Human Rights and Administrative Justice (CHRAJ); an official from the Ministry of Women and Children Affairs (MOWAC); and an official from the Domestic Violence and Victims Support Unit (DOVVSU) of Ghana. The study found out that despite legislative intervention and policy frameworks, the practice still persist among the Akan communities in Ghana. The reasons for the continued existence of such rituals are explained followed by recommendations for possible solutions.
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  • Date Issued: 2016

Giving effect to the rights of remand detainees

  • Authors: Africa, Nicole Kristy
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51205 , vital:43216
  • Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

Large scale retrenchments: an overview of Section 189 A

  • Authors: Ah Shene, Lee-Anne Dorothy
  • Date: 2012
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
  • Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
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  • Date Issued: 2012

A comparative analysis of the rights of the child with particular reference to child soldiers

  • Authors: Anwo, Joel Olasunkanmi
  • Date: 2008
  • Subjects: Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
  • Language: English
  • Type: Thesis , Doctoral , LLD
  • Identifier: vital:11108 , http://hdl.handle.net/10353/102 , Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
  • Description: The recruitment, enlistment and forceful conscription of children as soldiers is a cause for grave concern all over the world and most especially in Africa, where years of factional fighting, civil wars and cross border conflicts have raged, children and youth have been pulled into violence not only as victims, but also as perpetrators. The involvement of children in war posses a severe challenge to prevailing moral and legal norms of the conduct of modern warfare. A major problem and most controversial issue, among others, is on the age at which children should be eligible to become combatants. Children, who may be viewed as a valuable resource due to their often inherent malleability, wish to avenge family member(s) killed in war, sense of immunity to danger, and or feeling of power in participating in the violence. Can the use of children as soldiers be effectively regulated in Africa? All efforts to assist child soldiers in recovering from the devastating effects of wars often unwillingly helped promote the growing number of child soldiers. This is in part because wars are now more fought internally among rebel armies and factions vying for power with the government and thus enlist children into their various armies. The study comes to a conclusion that drastic steps need to be taken to ameliorate this unfortunate situation. This formed the basis of the recommendations offered in the thesis to assist the African continent.
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  • Date Issued: 2008

South African criminal justice : a paradigm shift to victim-centred restorative justice?

  • Authors: Apollos, Dumisani
  • Date: 2014
  • Subjects: Restorative justice -- South Africa , Apartheid -- South Africa -- History , Democracy -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10183 , http://hdl.handle.net/10948/d1020078
  • Description: The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.
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  • Date Issued: 2014

Bail applications in Nigeria and South Africa

  • Authors: Babalola, Abdulateef Taiwo
  • Date: 2020
  • Subjects: Bail -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/47325 , vital:39847
  • Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
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  • Date Issued: 2020

Labour dispute resolution in South Africa and Malawi: a comparative study

  • Authors: Banda, Lisa Malopa
  • Date: 2018
  • Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/23891 , vital:30639
  • Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
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  • Date Issued: 2018

Cross-border assistance in the recovery of foreign tax debt

  • Authors: Barnard, Hugo
  • Date: 2017
  • Subjects: Taxation -- South Africa Tax administration and procedure -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/15989 , vital:28302
  • Description: Internationally, there is a growing drive towards inter-governmental assistance with tax matters, including assistance in the collection of outstanding tax debt. The purpose of this study is the consider the development of South Africa’s ability to assist with the collection of foreign tax debt. The South African common law revenue rule precludes South Africa from rendering assistance with the recovery of a foreign tax debt. The revenue rule, however, may be abrogated through legislation. Analysis of section 93 of the Income Tax Act1 and section 185 of the Tax Administration Act2 indicates that a pre-requisite for South Africa to render assistance with the collection of a tax debt is the existence of an international tax agreement between South Africa and the requesting state which makes provisions for such assistance. It was also found that the South African Revenue Service (SARS) would not be able to rely on section 172 of the Tax Administration Act in order to obtain a civil judgement for recovery of a foreign tax debt. Interpretation of these provisions in light of the Constitution3 and the Promotion of Administrative Justice Act4 (PAJA) indicates that they do not violate the Constitution, but actions taken by SARS may be subject to judicial review under the PAJA. After analysis of South Africa’s bilateral international tax agreements, it was found that 22 agreements contain provisions for assistance with collection of a tax debt. A review of the Multilateral Convention for Mutual Administrative Assistance in Tax Matters indicates that South Africa and 73 other countries are bound by it. Analysis of the provisions of the international tax agreements and the South African case law dealing with conflicts between international agreements and domestic legislation indicates that the South African courts would give preference to the provisions of the international agreement over domestic legislation in the case of a conflict. A review of selected cases involving assistance provisions in international tax agreements suggests that the South African courts will apply the assistance provisions to taxes that arose prior to the effective date of the assistance provisions.
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  • Date Issued: 2017

Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right

  • Authors: Batchelor, Bronwyn Le Ann
  • Date: 2011
  • Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
  • Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
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  • Date Issued: 2011

A critical assessment of credit provision governance in South Africa with a focus on balancing the rights and responsibilities of credit providers and consumers under Section 129 of the National Credit Act 34 of 2005

  • Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
  • Date: 2022-05
  • Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
  • Language: English
  • Type: Doctoral theses , text
  • Identifier: http://hdl.handle.net/10353/26715 , vital:65967
  • Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
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  • Date Issued: 2022-05

A trade union’s right to strike to acquire organisational rights

  • Authors: Bebula, Vitamin Luxolo
  • Date: 2020
  • Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/48949 , vital:41565
  • Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
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  • Date Issued: 2020

The validity of humanitarian intervention under international law

  • Authors: Beneke, Méchelle
  • Date: 2003
  • Subjects: Humanitarian intervention , Intervention (International law)
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11056 , http://hdl.handle.net/10948/305 , Humanitarian intervention , Intervention (International law)
  • Description: The study which follows considers the current approach to State sovereignty, use of force, and human rights, in order to determine the balance which exists between these concepts. A shift in this balance determines the direction of development of the concept of ‘humanitarian intervention.’ The investigation establishes that State sovereignty and certain human rights are at a point where they are viewed as equal and competing interests in the international arena. This leads to the question of whether or not the concept of humanitarian intervention has found any acceptance in international law. It is determined that the right to intervention rests exclusively with the United Nations Security Council. There are, however, obstacles to United Nations action, which necessitate either taking action to remove the obstacles, or finding an alternative to United Nations authorized action. The alternatives provided are unilateral interventions by regional organizations, groups of States or individual States, with interventions by regional organizations being favoured. The study further discusses the requirements which would make unilateral action more acceptable. These same requirements provide a standard against which the United Nations can measure its duty to intervene. Such an investigation was done by the International Commission on Intervention and State Sovereignty, and a synopsis of its Report and Recommendations are included. Finally, the question of responsibility is addressed. State and individual responsibility for two separate types of action are considered. The responsibility of States and individuals for initiating an intervention is considered under the topic of the crime of aggression. The responsibility of States and individual for exceeding the mandate of a legitimate intervention is considered under the heading of war crimes.
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  • Date Issued: 2003

The concurrent jurisdiction of the high court and labour court

  • Authors: Beyleveld, Dominique
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Labor laws and legislation--South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51191 , vital:43218
  • Description: The words “concurrent jurisdiction” essentially means that there is more than one court which has the power to hear a matter and therefore, a party may choose which forum to approach.1 The High Court (hereinafter referred to as “HC”) may exercise jurisdiction, together with the Labour Court (hereinafter referred to as “LC”), in enforcing purely contractual and other common law claims as well as for breach of fundamental rights to which the Labour Relations Act (LRA)2 (or other labour statutes) do not give effect to.3 However, this is not without limitations. The HC and the LC have concurrent jurisdiction over claims relating to the lawfulness of dismissal or other conduct by the parties, whereas all claims based on fairness falls within the exclusive jurisdiction of the LC.4 The practical implication of the approach taken by the Constitutional Court (hereinafter referred to as “CC”)5 is that jurisdiction may, to a certain extent,6 be based on the pleadings, and a litigant may in fact have simultaneous claims arising from the same circumstances.7 However, where the basis of the action and the relief sought is clearly identifiable as being part of the machinery of the Labour Relations Act (hereinafter referred to as the “LRA”) or other labour legislation, then the HC will not have jurisdiction and it is up to the LC to remedy the wrong and give effect to the primary objects of the LRA , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
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  • Date Issued: 2021-04

Critical analysis of the 2007 public service strike and its impact on the evolution of formalised collective bargaining in South Africa

  • Authors: Bhe, Vuyisile
  • Date: 2009
  • Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
  • Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
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  • Date Issued: 2009

Commercial Law: ACL 121

  • Authors: Bidie, S S , Lubisi-Nkoane, N
  • Date: 2010-01
  • Subjects: Commercial law
  • Language: English
  • Type: Examination paper
  • Identifier: vital:17361 , http://hdl.handle.net/10353/d1009813
  • Description: Commercial Law: ACL 121,January Supplementary Paper 2010
  • Full Text: false
  • Date Issued: 2010-01
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