Amendments to the labour relations act to curb violent and intractable strikes
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
Public policy considerations and the enforcement of restraint of trade agreements.
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Tinyane, Nthabeleng
- Date: 2024-04
- Subjects: Trade agreement , Restraint of trade , Commercial policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/66297 , vital:74493
- Description: A restraint of trade is often incorporated into a contract of employment, stipulating that an employee is restricted from working in the same industry or sector as the employer for a specified period of time. Such a provision is aimed at protecting an employer's proprietary interests, such as trade connections and secrets, which may potentially benefit a competitor unfairly and unlawfully. In South Africa, the principles associated with restraints of trade are rooted in common law. The landmark judgment in Magna Alloys & Research (SA) (Pty) Ltd v Ellis clarified the legal position regarding agreements in restraint of trade in South Africa. Prior to the judgment, there were considerable differences in the approaches adopted by the courts in relation to provisions in restraint. These differences primarily centered around the Roman-Dutch law notion, which holds that contracts voluntarily entered into ought to be honored (pacta sunt servanda), and the English law approach that contracts in restraint of trade are prima facie unenforceable. The court in Magna held that the position in South Africa with regard to agreements in restraint of trade is that each agreement should be examined with regard to its own circumstances to determine whether the enforcement of such an agreement would be contrary to public policy. This means that while restraints of trade are generally enforceable, they must be reasonable and not against the public interest. The reasonableness of the restraint is assessed based on factors such as the duration and geographic scope of the restraint, the nature of the employee’s role, and the interests of the employer that the restraint seeks to protect.. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Full Text:
- Date Issued: 2024-04
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