Labour dispute resolution in South Africa and Malawi: a comparative study
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
Labour rights of fishers in Namibia
- Hamukuaya, Nghililewanga Hashali
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
Child sex tourism in South African law
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
- Authors: Chetty, Kasturi
- Date: 2007
- Subjects: Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10276 , http://hdl.handle.net/10948/485 , Child sexual abuse -- South Africa , Sex tourism -- Law and legislation -- South Africa , Sex crimes -- South Africa , Child prostitution -- South Africa
- Description: Child sex tourism is tourism organised with the primary purpose of facilitating a commercial sexual relationship with a child. It involves a segment of the local child sex industry that is directly connected to both an international and domestic tourist market. The increase of tourism has brought with it complications in that tourism is being used as a means for sex tourists to initiate contact with children. Aside from child sex tourists who are paedophiles, there are those who engage in the opportunistic exploitation of children while travelling on business or for other reasons. There are a number of social and economic factors leading to child sex tourism and the effect is that child victims are exposed to immediate harm, irreversible damage and even death. As South Africa's tourism industry expands into one of the country’s top earners of foreign currency, it is unfortunate to note that its child sex tourist trade is also on the increase. Reports show that sex tours are as easily organised as wine route tours in Cape Town. Commercial sexual exploitation of children is prevalent in South Africa and has become more organised in recent years. A comprehensive response to the problem is essential to ensure that South Africa does not become a “safe haven” for child sex tourists. Effective laws at home and the extraterritorial application of these laws to prosecute South African nationals for crimes committed abroad are imperative. Significant steps are being taken both nationally and internationally to target child sex tourism. South Africa has ratified several international instruments on children’s rights, trafficking in persons, child labour, and discrimination against women and young girls, all of which relate to child sex tourism. In doing so, South Africa has made an international commitment to uphold the provisions of these instruments and give effect to them. South Africa is therefore under an international obligation to create the necessary structures and apply mechanisms and resources to combat child sex tourism.
- Full Text:
- Date Issued: 2007
The constitutional right of access to social security
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001
The use of Police force in crowd management
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
The constitutionality of section 32 of the Labour Relations Act
- Authors: Hemsley, Michael Norman
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa Labor unions -- South Africa Collective bargaining -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11070 , vital:26882
- Description: Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.
- Full Text:
- Date Issued: 2015
- Authors: Hemsley, Michael Norman
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa Labor unions -- South Africa Collective bargaining -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11070 , vital:26882
- Description: Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.
- Full Text:
- Date Issued: 2015
The WTO agreement on technical barriers to trade : a critical appraisal of its implementation within the Southern African Development Community
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017
- Authors: Chimeri, Vongai
- Date: 2017
- Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/2855 , vital:28108
- Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
- Full Text:
- Date Issued: 2017
Workplace forums in terms of the labour relations act 66 of 1995
- Authors: Pather, Sivalingam
- Date: 2007
- Subjects: Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10229 , http://hdl.handle.net/10948/845 , Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Description: The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.
- Full Text:
- Date Issued: 2007
- Authors: Pather, Sivalingam
- Date: 2007
- Subjects: Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10229 , http://hdl.handle.net/10948/845 , Industrial relations -- South Africa , Labor laws and legislation -- South Africa , Works councils -- Law and legislation -- South Africa , Works councils -- South Africa
- Description: The promulgation into law of the concept of workplace forums has been beset with immense criticism and opposition from organized labour and some quarters of organized business. Last ditch efforts by the Ministerial Task Team had won the day for the inclusion of this controversial provision in the new Labour Relations Act.1 Commentators on the Act tend to agree that the fallout with organized labour at the negotiations has probably set the scene as to whether the provisions would be widely used or not. History has shown that the establishment of such forums in workplaces has been low. In some situations where workplace forums had been established, their continuous sustainability was put into doubt. This has led to the de-establishment of some of these forums in some workplaces. Various reasons were provided, but the prime factors for its failure could be traced back to the negotiations at NEDLAC. The unions opposed the original proposal by government that minority unions and even non-union employees can trigger the establishment of a workplace forum and insisted that this be restricted to majority unions. The voluntary nature regarding the establishment of a workplace forum and the trigger that only a majority union can invoke the provisions has still seen unions reluctant to utilize the provisions since it did not serve their purpose. The aims of the provisions, namely to increase workplace democracy, was therefore thwarted in favour of more informal procedures. Although the idea is a noble one, it is argued that the introduction of the provisions was ill-timed and inappropriate. The lesson that the legislature can take is that for any provision to be a success, buy-in from all stakeholders is paramount. Research has shown that there was a steady decline in the establishment of workplace forums. Since December 2004 there was not a single application received by the Commission for Conciliation, mediation and Arbitration. There is also doubt as to whether any of the Forums that were previously established are still functional. What is certain is that statutory workplace forums is not at the forefront as a vehicle for change that was envisaged in the Explanatory Memorandum that accompanied the new Labour Relations Act. What is also certain is that employers and employees are utilizing other forums to ensure workplace participation. These forums, however, only provide a voice to unionized workers. The vast majority of non-union workers remain voiceless. The proposed amendments in 2002 that intimated that the trigger be any union and not only majority unions failed to be passed into law. Perhaps it is that type of catalyst that is required to give life to the provisions. The future of workplace forums in South Africa is bleak and will continue to be if there is no intervention by the parties at NEDLAC to revive it. A complete revamp of the legislation would be required for such a revival. Some commentators have made meaningful suggestions on changes that can be made to the legislation to make workplace forums more attractive. Some have suggested it be scrapped altogether and future workplace participatory structures should be left to the parties to embrace voluntarily. Workplace forums are a novel innovation with great potential to encourage workplace democracy. There is nothing wrong with the concept. The application of such forums in the South African context is what is concerning. Perhaps prior experience and experimentation with similar type forums have tarnished workplace participation. The strategies by the previous regime and some employers have caused such participation to equate to co-option. Perhaps not enough spade work was done to ensure that the climate and attitude of the parties was conducive for its introduction. What is paramount no matter the form it takes is that workplace participation is crucial for economic growth and the introduction of new work methods to improve productivity. Without the establishment of such forums, whether voluntary or statutory, the ‘second channel principle’ that promotes non-adversarial workplace joint decision-making would be lost and conflict based participation could spiral leading to economic disaster.
- Full Text:
- Date Issued: 2007
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
Constitutionalism and separation of powers in South Africa after the promulgation of the 1996 constitution : a comparative perspective
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
Confiscation orders in terms of the prevention of Organised Crime Act
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
A critique of dispute resolution in the public service
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
The rights of children in youth care centres
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
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
Xenophobia in South Africa: a socio-legal analysis
- Authors: Sibanda, Samukeliso
- Date: 2011-04
- Subjects: Xenophobia -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/25548 , vital:64334
- Description: The ways in which xenophobia continues to express itself in South Africa deserve to be noted at an advanced study. Over the past 15 years the expressions of xenophobia have been accompanied by increased deaths, more discrimination, increase of stereotyping of people of African descent and increased violence towards non-nationals, especially in the poorer parts of South Africa. Many of such xenophobic expressions have gone unnoticed and where they have been noticed, they have received little attention, leading to the exacerbation of the problem. The researcher of this study dwelt on a socio-legal analysis of xenophobia in South Africa. Appreciating the legal connotations and the expressions of xenophobia in South African society is a major concern of this study. To fulfill the objectives of this study, the researcher explores the extent and expression of xenophobia, in addition to analyzing and assessing the efficacy of legislative and other measures aimed to protect non-nationals in South Africa. The study investigates the role of state organizations, government and civil society and evaluates the impact of xenophobia on the enjoyment of human rights by non-nationals. A central objective of this study was to suggest alternative ways of explaining and understanding xenophobia and the responses to it. Empirical research was conducted to explore the extent of xenophobia in South Africa and how and why it is manifested in the way it is. Through in-depth face-to-face interviews it was revealed that the extent and manifestation of xenophobia differs in relation to particular communities, economic set ups and social settings; with poor communities being the most vulnerable to violent xenophobic attacks. Further, it was interesting to note that people have no firm understanding of what xenophobia entails as a social, legal, political and economical phenomenon. Again, it became evident that xenophobia still manifests in a country founded on values of equality, dignity and justice. Moreover, it was established that there is a weak link between law, human action and human behavior. It also became evident that education and sensitization need to be employed if xenophobic perceptions and behaviors are to be sufficiently dealt with. Recommendations were provided upon completion of the study. These included developing the law consciously, thus ensuring that the law has public legitimacy; effective law enforcement and prosecution; human rights education and training (especially in government departments, civil society organizations and institutions of learning); use of media and other communication channels to advocate for non discrimination, equality and respect for human rights, values and integration. Finally, the fight against xenophobia, racial discrimination and other related forms of intolerance needs to be taken up by all members of South African society and Africa at large. , Thesis (LLM) -- Faculty of Law, 2011
- Full Text:
- Date Issued: 2011-04
- Authors: Sibanda, Samukeliso
- Date: 2011-04
- Subjects: Xenophobia -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/25548 , vital:64334
- Description: The ways in which xenophobia continues to express itself in South Africa deserve to be noted at an advanced study. Over the past 15 years the expressions of xenophobia have been accompanied by increased deaths, more discrimination, increase of stereotyping of people of African descent and increased violence towards non-nationals, especially in the poorer parts of South Africa. Many of such xenophobic expressions have gone unnoticed and where they have been noticed, they have received little attention, leading to the exacerbation of the problem. The researcher of this study dwelt on a socio-legal analysis of xenophobia in South Africa. Appreciating the legal connotations and the expressions of xenophobia in South African society is a major concern of this study. To fulfill the objectives of this study, the researcher explores the extent and expression of xenophobia, in addition to analyzing and assessing the efficacy of legislative and other measures aimed to protect non-nationals in South Africa. The study investigates the role of state organizations, government and civil society and evaluates the impact of xenophobia on the enjoyment of human rights by non-nationals. A central objective of this study was to suggest alternative ways of explaining and understanding xenophobia and the responses to it. Empirical research was conducted to explore the extent of xenophobia in South Africa and how and why it is manifested in the way it is. Through in-depth face-to-face interviews it was revealed that the extent and manifestation of xenophobia differs in relation to particular communities, economic set ups and social settings; with poor communities being the most vulnerable to violent xenophobic attacks. Further, it was interesting to note that people have no firm understanding of what xenophobia entails as a social, legal, political and economical phenomenon. Again, it became evident that xenophobia still manifests in a country founded on values of equality, dignity and justice. Moreover, it was established that there is a weak link between law, human action and human behavior. It also became evident that education and sensitization need to be employed if xenophobic perceptions and behaviors are to be sufficiently dealt with. Recommendations were provided upon completion of the study. These included developing the law consciously, thus ensuring that the law has public legitimacy; effective law enforcement and prosecution; human rights education and training (especially in government departments, civil society organizations and institutions of learning); use of media and other communication channels to advocate for non discrimination, equality and respect for human rights, values and integration. Finally, the fight against xenophobia, racial discrimination and other related forms of intolerance needs to be taken up by all members of South African society and Africa at large. , Thesis (LLM) -- Faculty of Law, 2011
- Full Text:
- Date Issued: 2011-04
The obligation of unmarried biological parents to provide financial support for their children: a contemporary assessment from a children’s rights perspective
- Authors: Obi, Lauretta
- Date: 2021-07
- Subjects: Children's rights , Support (Domestic relations)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22445 , vital:52322
- Description: In South Africa, the compelling task of unmarried biological parents to provide financial support (in the form of paying monthly maintenance) to their children, as a matter of children’s rights, is intended to ensure the children’s economic and psychological well-being both in the present and future. This study seeks, within the private judicial system and socio-economic context, to explore the nature of children’s rights as they pertain to parental financial support and, the responsibilities of unmarried parents to provide financial support for their biological children until they become self-supporting. This is significant as many unmarried parents usually downplay their responsibilities towards ensuring the well-being of their minor children. Section 28 of the South African Constitution of 1996 enshrines it as a duty of parents to fulfil this aspect of their children’s fundamental rights and our courts apply these rules to the letter. The task of providing support to children basically rests with their birth parents as the primary care givers, and in the absence of these parents or, due to their inability, this legal obligation falls on the state. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-07
- Authors: Obi, Lauretta
- Date: 2021-07
- Subjects: Children's rights , Support (Domestic relations)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22445 , vital:52322
- Description: In South Africa, the compelling task of unmarried biological parents to provide financial support (in the form of paying monthly maintenance) to their children, as a matter of children’s rights, is intended to ensure the children’s economic and psychological well-being both in the present and future. This study seeks, within the private judicial system and socio-economic context, to explore the nature of children’s rights as they pertain to parental financial support and, the responsibilities of unmarried parents to provide financial support for their biological children until they become self-supporting. This is significant as many unmarried parents usually downplay their responsibilities towards ensuring the well-being of their minor children. Section 28 of the South African Constitution of 1996 enshrines it as a duty of parents to fulfil this aspect of their children’s fundamental rights and our courts apply these rules to the letter. The task of providing support to children basically rests with their birth parents as the primary care givers, and in the absence of these parents or, due to their inability, this legal obligation falls on the state. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-07
Non-standard employment in terms of the labour relations act
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
Sidumo revisited
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
The constitutional right to food in South Africa
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
- Authors: Holness, David Roy
- Date: 2007
- Subjects: Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10202 , http://hdl.handle.net/10948/844 , Right to food , Human rights -- South Africa , Nutrition policy -- South Africa
- Description: This dissertation is a study of the ambit of the right to food as it is contained in the South African Bill of Rights and the steps needed to realise the right. Existing and potential food insecurity, hunger and malnutrition provide the social context for this research. The rationale for conducting the research is primarily two-fold. Firstly, the access to sufficient food is an indispensable right for everyone living in this country. Secondly, the right to food in South Africa has not been subject to extensive academic study to date. Socio-economic rights are fully justiciable rights in this country, equally worthy of protection as civil and political rights. Furthermore, socio-economic rights (like the right to food) are interdependent with civil and political rights: neither category can meaningful exist without realisation of the other. The right to sufficient food is found in section 27(1)(b) of the South African Constitution. Children have the additional right to basic nutrition in terms of section 28(1)(c). The right to sufficient food is subject to the internal limitation of section 27(2) that the state must take reasonable measures, within its available resources, to achieve the progressive realisation of the right. Furthermore, as with all rights in the Bill of Rights, both these rights are subject to the general limitations clause found in section 36. There is international law authority in various human rights instruments for the protection of the right to food and what the right entails. In accordance with section 39 of the Constitution, such international law must be considered when interpreting the right to food. It is argued that a generous and broad interpretation of food rights in the Constitution is called for. Existing legislation, state policies and programmes are analysed in order to gauge whether the state is adequately meeting its right to food obligations. Furthermore, the state’s food programmes must meet the just administrative action requirements of lawfulness, reasonableness and procedural fairness of section 33 of the Constitution and comply with the Promotion of Just Administrative Justice Act. The dissertation analyses the disparate and unco-ordinated food and law policies in existence, albeit that the National Food Security Draft Bill offers the hope of some improvement. Particular inadequacies highlighted in the state’s response to the country’s food challenges are a lack of any feeding schemes in high schools and insufficient food provision in emergency situations. Social assistance grants available in terms of the Social Assistance Act are considered due to their potential to make food available to grant recipients. On the one hand there is shown to be a lack of social assistance for unemployed people who do not qualify for any form of social grant. On the other hand, whilst presently underutilised and not always properly administered, social relief of distress grants are shown to have the potential to improve access to sufficient food for limited periods of time. Other suggested means of improving access to sufficient food are income generation strategies, the introduction of a basic income grant and the creation of food framework legislation. When people are denied their food rights, this research calls for creative judicial remedies as well as effective enforcement of such court orders. However, it is argued that education on what the right to food entails is a precondition for people to seek legal recourse to protect their right to food. Due to a lack of case authority on food itself, guidance is sought from the findings of South Africa’s Constitutional Court in analogous socio-economic rights challenges. Through this analysis this dissertation considers the way forward, either in terms of direct court action or via improved access to other rights which will improve food access.
- Full Text:
- Date Issued: 2007
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020