A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
A comparative exposition of Islamic law relating to the law of husband and wife
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
A comparison of the implementation of equal pay for work of equal value with Canadian law
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
Affirmative action as a strategy for social justice in South Africa
- Authors: Sinuka, Zamile Hector
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Social justice -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20362 , vital:29268
- Description: The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.
- Full Text:
- Date Issued: 2017
- Authors: Sinuka, Zamile Hector
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Social justice -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20362 , vital:29268
- Description: The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.
- Full Text:
- Date Issued: 2017
An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
- Full Text:
- Date Issued: 2017
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
- Full Text:
- Date Issued: 2017
An evaluation of affirmative action in public sector
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
An evaluation of the impact of the Consumer Protection Act 68 of 2008 on the relationship between franchisors and franchisees
- Authors: Biggs, Lynn
- Date: 2017
- Subjects: South Africa -- Consumer Protection Act, 2008 Consumer protection -- Law and legislation -- South Africa , Franchises (Retail trade) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10948/14642 , vital:27810
- Description: The franchising business model is an attractive option for both franchisors and franchisees. Franchisors grant the rights to use their intellectual property and business system to franchisees for a fee. Franchisees buy into the tried-and-tested business system, receive ongoing training and support and operate under an established trade mark or trade name. Fundamental characteristics of the franchise relationship include: the contractual nature thereof, the use of the franchisor‘s intellectual property by the franchisee, operating the franchise outlet according to the franchisor‘s business system, providing training and support to the franchisee, and paying for the use of the franchisor‘s intellectual property and business system. These characteristics have resulted in inherent tensions between franchisors and franchisees, which arise by virtue of, inter alia, the control exercised by the franchisor over the use of its intellectual property, franchisor opportunism, poor franchisee selection, franchisee free-riding, inadequate training and support, or the sunk investments made by the franchisee. The franchisor and franchisee generally use a franchise agreement to regulate their relationship. However, the franchise agreement itself can also lead to conflict between the parties, such as that arising from poor drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade, or confidentiality. The franchise agreement is typically drafted in the standard-form, resulting in franchisees faced with unequal bargaining power. The common law of contract is based on principles of freedom of contract and sanctity of contract and is, therefore, limited in its ability to resolve the tensions between the parties. Various models for regulating the franchising industry can be adopted, for example, self-regulation, statutory regulation, or co-regulation. Australia and Canada have adopted the statutory model by enacting franchise-specific legislation and New Zealand has followed the self-regulation model with no legislation regulating its franchising industry. South Africa did not formally regulate the franchise relationship through legislation until the enactment of its consumer protection legislation, the Consumer Protection Act 68 of 2008 (CPA), which includes a franchisee within the definition of consumer. This entails that all franchisees enjoy the protection of the CPA and all franchise agreements must comply with the provisions of the CPA. The South African economy is unique in that it is burdened by the social ills of its discriminatory past, such as high levels of unemployment, illiteracy and inequality. The country is faced with a slow growing economy with little development and promotion of entrepreneurship among small businesses. Despite the burdensome economy within which the franchising industry is required to operate, the industry‘s contribution to the Gross Domestic Product (GDP) of the country has remained stable. The South African government has identified the franchising industry as an opportunity for job creation, economic empowerment and promotion of entrepreneurship. The aim of the study is to ascertain whether the CPA is the correct legislative vehicle to regulate the franchise relationship, while enhancing the growth and development of the franchising industry. This thesis concludes that the introduction of fundamental consumer rights and rights of redress for franchisees through the provisions of the CPA has contributed to, or assisted in, the removal of the tensions inherent in the franchise relationship. In particular, the CPA has adequately addressed the lack of formal regulation of the franchise relationship through its disclosure requirements and its regulations. The thesis also proposes amendments to some of the CPA regulations, which will further enhance the disclosure requirements, and aid in curtailing the conflict caused by the terms of the franchise agreement. The thesis further proposes that the application of the CPA to franchise agreements should be limited to small, inexperienced or unsophisticated franchisees that are in need of the protection. An essential premise is that the CPA aims to protect ordinary consumers, including juristic persons, in day-to-day transactions (up to the threshold amount), to avoid suppliers taking advantage of them. Larger, more sophisticated or experienced franchisees, with stronger bargaining power and access to legal advice, do not necessarily require the protection of the CPA. The criteria relating to the size of class of micro-, very small and small enterprises, but not medium enterprises, within the different sectors or sub-sectors in terms of the National Small Enterprises Act, 102 of 1996, should be considered and used as a guide to determine whether the CPA applies to a franchise agreement. The development, growth and success of the franchising industry depends on the education of prospective franchisees wanting to adopt the franchising business model and invest in the industry. The CPA does not recognise or promote the roles of the various stakeholders (franchisors, franchisees and the government) with regard to the provision of education, training, ongoing support and assistance to prospective franchisees. This thesis proposes that mechanisms to enhance the education of prospective franchisees should be promoted, such as tandem franchising, obtaining advice undertakings from prospective franchisees before concluding franchise agreements, and increasing the role of the Consumer Commission in providing franchising education.
- Full Text:
- Date Issued: 2017
- Authors: Biggs, Lynn
- Date: 2017
- Subjects: South Africa -- Consumer Protection Act, 2008 Consumer protection -- Law and legislation -- South Africa , Franchises (Retail trade) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10948/14642 , vital:27810
- Description: The franchising business model is an attractive option for both franchisors and franchisees. Franchisors grant the rights to use their intellectual property and business system to franchisees for a fee. Franchisees buy into the tried-and-tested business system, receive ongoing training and support and operate under an established trade mark or trade name. Fundamental characteristics of the franchise relationship include: the contractual nature thereof, the use of the franchisor‘s intellectual property by the franchisee, operating the franchise outlet according to the franchisor‘s business system, providing training and support to the franchisee, and paying for the use of the franchisor‘s intellectual property and business system. These characteristics have resulted in inherent tensions between franchisors and franchisees, which arise by virtue of, inter alia, the control exercised by the franchisor over the use of its intellectual property, franchisor opportunism, poor franchisee selection, franchisee free-riding, inadequate training and support, or the sunk investments made by the franchisee. The franchisor and franchisee generally use a franchise agreement to regulate their relationship. However, the franchise agreement itself can also lead to conflict between the parties, such as that arising from poor drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade, or confidentiality. The franchise agreement is typically drafted in the standard-form, resulting in franchisees faced with unequal bargaining power. The common law of contract is based on principles of freedom of contract and sanctity of contract and is, therefore, limited in its ability to resolve the tensions between the parties. Various models for regulating the franchising industry can be adopted, for example, self-regulation, statutory regulation, or co-regulation. Australia and Canada have adopted the statutory model by enacting franchise-specific legislation and New Zealand has followed the self-regulation model with no legislation regulating its franchising industry. South Africa did not formally regulate the franchise relationship through legislation until the enactment of its consumer protection legislation, the Consumer Protection Act 68 of 2008 (CPA), which includes a franchisee within the definition of consumer. This entails that all franchisees enjoy the protection of the CPA and all franchise agreements must comply with the provisions of the CPA. The South African economy is unique in that it is burdened by the social ills of its discriminatory past, such as high levels of unemployment, illiteracy and inequality. The country is faced with a slow growing economy with little development and promotion of entrepreneurship among small businesses. Despite the burdensome economy within which the franchising industry is required to operate, the industry‘s contribution to the Gross Domestic Product (GDP) of the country has remained stable. The South African government has identified the franchising industry as an opportunity for job creation, economic empowerment and promotion of entrepreneurship. The aim of the study is to ascertain whether the CPA is the correct legislative vehicle to regulate the franchise relationship, while enhancing the growth and development of the franchising industry. This thesis concludes that the introduction of fundamental consumer rights and rights of redress for franchisees through the provisions of the CPA has contributed to, or assisted in, the removal of the tensions inherent in the franchise relationship. In particular, the CPA has adequately addressed the lack of formal regulation of the franchise relationship through its disclosure requirements and its regulations. The thesis also proposes amendments to some of the CPA regulations, which will further enhance the disclosure requirements, and aid in curtailing the conflict caused by the terms of the franchise agreement. The thesis further proposes that the application of the CPA to franchise agreements should be limited to small, inexperienced or unsophisticated franchisees that are in need of the protection. An essential premise is that the CPA aims to protect ordinary consumers, including juristic persons, in day-to-day transactions (up to the threshold amount), to avoid suppliers taking advantage of them. Larger, more sophisticated or experienced franchisees, with stronger bargaining power and access to legal advice, do not necessarily require the protection of the CPA. The criteria relating to the size of class of micro-, very small and small enterprises, but not medium enterprises, within the different sectors or sub-sectors in terms of the National Small Enterprises Act, 102 of 1996, should be considered and used as a guide to determine whether the CPA applies to a franchise agreement. The development, growth and success of the franchising industry depends on the education of prospective franchisees wanting to adopt the franchising business model and invest in the industry. The CPA does not recognise or promote the roles of the various stakeholders (franchisors, franchisees and the government) with regard to the provision of education, training, ongoing support and assistance to prospective franchisees. This thesis proposes that mechanisms to enhance the education of prospective franchisees should be promoted, such as tandem franchising, obtaining advice undertakings from prospective franchisees before concluding franchise agreements, and increasing the role of the Consumer Commission in providing franchising education.
- Full Text:
- Date Issued: 2017
Appointment and promotion disputes in the public education sector
- Authors: Rustin, Jonavon Keith
- Date: 2017
- Subjects: Labor disputes -- South Africa Education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20277 , vital:29182
- Description: Promotions and appointments in the Public Education Sector had led to many disputes that were referred to the Education Labour Relations Council (the "ELRC"). For a long time most disputes referred to the ELRC concerned promotion disputes. In this treatise the applicable law relating to the promotions and appointments is described and evaluated. Shortly before the completion of the treatise a collective agreement was concluded under the auspices of the ELRC with a view to regulating appointments and promotions. The historical background is traced and the present legislative framework is explained. Thereafter the ELRC Resolutions dealing with the topic discussed and the new collective agreement is unpacked.
- Full Text: false
- Date Issued: 2017
- Authors: Rustin, Jonavon Keith
- Date: 2017
- Subjects: Labor disputes -- South Africa Education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20277 , vital:29182
- Description: Promotions and appointments in the Public Education Sector had led to many disputes that were referred to the Education Labour Relations Council (the "ELRC"). For a long time most disputes referred to the ELRC concerned promotion disputes. In this treatise the applicable law relating to the promotions and appointments is described and evaluated. Shortly before the completion of the treatise a collective agreement was concluded under the auspices of the ELRC with a view to regulating appointments and promotions. The historical background is traced and the present legislative framework is explained. Thereafter the ELRC Resolutions dealing with the topic discussed and the new collective agreement is unpacked.
- Full Text: false
- Date Issued: 2017
Blessing or curse? : an evaluation of the African Growth Opportunity Act
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
- Full Text:
- Date Issued: 2017
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
- Full Text:
- Date Issued: 2017
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
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.
- Full Text:
- Date Issued: 2017
- 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.
- Full Text:
- Date Issued: 2017
Decolonising the regulation of the right to strike in South Africa : an analysis
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
Determining jurisdiction at conciliation and arbitration
- Authors: Snyman, Chanel
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration -- Rules and practice Arbitration, Industrial -- South Africa , Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20648 , vital:29365
- Description: Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.
- Full Text:
- Date Issued: 2017
- Authors: Snyman, Chanel
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration -- Rules and practice Arbitration, Industrial -- South Africa , Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20648 , vital:29365
- Description: Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.
- Full Text:
- Date Issued: 2017
Discrimination based on age in labour law
- Authors: Oosthuizen, Tania
- Date: 2017
- Subjects: Age and employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Age discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19484 , vital:28884
- Description: This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
- Full Text:
- Date Issued: 2017
- Authors: Oosthuizen, Tania
- Date: 2017
- Subjects: Age and employment -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Age discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19484 , vital:28884
- Description: This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
- Full Text:
- Date Issued: 2017
Dismissal for operational requirements in the context of collective bargaining
- Authors: Mfaxa, Mncedisi
- Date: 2017
- Subjects: Collective bargaining -- South Africa , Collective bargaining -- Dismissal of Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13923 , vital:27358
- Description: The highly competitive environment in which companies functions prompts the need to review their operations which may include reconsideration of the manning levels, and or changing terms and conditions of employment in order to be able to survive and prosper economically. The difficulty arises when the employers have to respond to the challenges. By law the employers are legally prohibited from unilaterally effecting the changes to the terms and conditions of employment. Furthermore, changing terms and conditions of employment is dealt with through collective bargaining and as such, the dismissal is outlawed as a legitimate instrument to coerce the employees to concede to the proposals. So the employers have to obtain an agreement or consent with the affected employees. In terms of the 1956 LRA the employer could justifiably terminate the contract of employment within the context of collective bargaining. For the employer to avoid offending the lock out provisions in terms of the 1956 LRA, the lock-out dismissal had to be effected in order to achieve a specific purpose, and it had to be conditional. Unlike its predecessor, the 1995 Labour Relations Act introduced section 187(1)(c) which renders the so-called lock-out dismissal by an employer, within the context of collective bargaining, automatically unfair. Section 187(1)(c) categorises a dismissal as automatically unfair, if the reason is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. The employers are however permitted in terms of the 1995 LRA, to dismiss the employees based on operational grounds, as long as the requisite process has been adhered to. The employers need to restructure their operations in order to ensure that terms and conditions of employment are responsive to operational needs. Where the employees’ terms and conditions of employment are not in line with the company operational requirements, the need to terminate the employment contracts of the employees may arise. The employers are within their right to terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers’ operational requirements. The court in Schoeman v Samsung Electronics confirmed that employer’s right to run its business in a successful manner, which includes affecting changes to the existing terms and conditions of employment to be aligned with the market demand. The dismissal is outlawed as a mechanism to coerce the employees to acceptance the employer’s demand relating to matters of mutual interest. At the same time, the employers are within their rights terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers operational requirements. There is a clear tension between sections 187(1) (c), 188(1) (ii) and 189 of LRA. When the employers seek to review the terms and conditions of employment, the tension between these sections becomes more common, as it involves the matters of mutual interest which are dealt with through the collective bargaining arena and the dispute of right through arbitration. In Fry’s Metals v Numsa the court rejected the notion that there is tension between section 187(1) (c) and section 188(1) (a) (ii) of the LRA. Instead the court was of the view that, there is a historical context to section 187(1) (c) which is the now repealed 1956 Labour Relations Act. The 1956 LRA included in its definition of a lock-out the termination by the employer. Secondly, the court interpreted section 187(1)(C) to only give protection to employees who are dismissed in order to compel them to accept a demand on a matter of mutual interest, and only where the dismissal was of a temporary nature. The court interpretation in Fry’s metals implied that, section 187(1)(c) will only come to the defence of employees if they are dismissed for the purpose compelling them to accept a demand on a matter of mutual interest, and if the dismissal was of a temporary nature. Where a permanent dismissal is effected because employees would not accept its demands, section 187(1) (c) could not come to the employees’ protection. Considering that the lock out provided for in terms of the 1995 LRA is not a preferred option by most of the employers, they will rather resort to use the loophole created by the narrow interpretation of section 187(1)(c) to circumvent having to secure consensus from the affected employees and rather dismissed them based on operational requirements. This study seeks to deal with the questions relating to the relationship between collective bargaining related dismissals in particular the automatically unfair dismissal in terms of section 187(1) (c) and business restructuring related dismissal. As such the relationship between sections 187(1) (c) and dismissals based on operational requirements will be central to this study.
- Full Text:
- Date Issued: 2017
- Authors: Mfaxa, Mncedisi
- Date: 2017
- Subjects: Collective bargaining -- South Africa , Collective bargaining -- Dismissal of Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13923 , vital:27358
- Description: The highly competitive environment in which companies functions prompts the need to review their operations which may include reconsideration of the manning levels, and or changing terms and conditions of employment in order to be able to survive and prosper economically. The difficulty arises when the employers have to respond to the challenges. By law the employers are legally prohibited from unilaterally effecting the changes to the terms and conditions of employment. Furthermore, changing terms and conditions of employment is dealt with through collective bargaining and as such, the dismissal is outlawed as a legitimate instrument to coerce the employees to concede to the proposals. So the employers have to obtain an agreement or consent with the affected employees. In terms of the 1956 LRA the employer could justifiably terminate the contract of employment within the context of collective bargaining. For the employer to avoid offending the lock out provisions in terms of the 1956 LRA, the lock-out dismissal had to be effected in order to achieve a specific purpose, and it had to be conditional. Unlike its predecessor, the 1995 Labour Relations Act introduced section 187(1)(c) which renders the so-called lock-out dismissal by an employer, within the context of collective bargaining, automatically unfair. Section 187(1)(c) categorises a dismissal as automatically unfair, if the reason is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer. The employers are however permitted in terms of the 1995 LRA, to dismiss the employees based on operational grounds, as long as the requisite process has been adhered to. The employers need to restructure their operations in order to ensure that terms and conditions of employment are responsive to operational needs. Where the employees’ terms and conditions of employment are not in line with the company operational requirements, the need to terminate the employment contracts of the employees may arise. The employers are within their right to terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers’ operational requirements. The court in Schoeman v Samsung Electronics confirmed that employer’s right to run its business in a successful manner, which includes affecting changes to the existing terms and conditions of employment to be aligned with the market demand. The dismissal is outlawed as a mechanism to coerce the employees to acceptance the employer’s demand relating to matters of mutual interest. At the same time, the employers are within their rights terminate the service of the employees who refuse to accept changes to their conditions of service based on the employers operational requirements. There is a clear tension between sections 187(1) (c), 188(1) (ii) and 189 of LRA. When the employers seek to review the terms and conditions of employment, the tension between these sections becomes more common, as it involves the matters of mutual interest which are dealt with through the collective bargaining arena and the dispute of right through arbitration. In Fry’s Metals v Numsa the court rejected the notion that there is tension between section 187(1) (c) and section 188(1) (a) (ii) of the LRA. Instead the court was of the view that, there is a historical context to section 187(1) (c) which is the now repealed 1956 Labour Relations Act. The 1956 LRA included in its definition of a lock-out the termination by the employer. Secondly, the court interpreted section 187(1)(C) to only give protection to employees who are dismissed in order to compel them to accept a demand on a matter of mutual interest, and only where the dismissal was of a temporary nature. The court interpretation in Fry’s metals implied that, section 187(1)(c) will only come to the defence of employees if they are dismissed for the purpose compelling them to accept a demand on a matter of mutual interest, and if the dismissal was of a temporary nature. Where a permanent dismissal is effected because employees would not accept its demands, section 187(1) (c) could not come to the employees’ protection. Considering that the lock out provided for in terms of the 1995 LRA is not a preferred option by most of the employers, they will rather resort to use the loophole created by the narrow interpretation of section 187(1)(c) to circumvent having to secure consensus from the affected employees and rather dismissed them based on operational requirements. This study seeks to deal with the questions relating to the relationship between collective bargaining related dismissals in particular the automatically unfair dismissal in terms of section 187(1) (c) and business restructuring related dismissal. As such the relationship between sections 187(1) (c) and dismissals based on operational requirements will be central to this study.
- Full Text:
- Date Issued: 2017
Effecting social justice during conciliation and CON-ARB processes conducted at the CCMA and bargaining councils
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
Establishing good cause subsequent to a deemed dismissal
- Authors: Rafapa, Malose Given
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Civil service -- Dismissal of -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11425 , vital:26922
- Description: The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
- Full Text:
- Date Issued: 2017
- Authors: Rafapa, Malose Given
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Civil service -- Dismissal of -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11425 , vital:26922
- Description: The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
- Full Text:
- Date Issued: 2017
Gender-based affirmative action in the appointment of High Court judges
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
Maritime piracy legislation for Nigeria
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
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