Unfair discrimination relating to mental illness
- Authors: Skosana, Hlengiwe
- Date: 2020
- Subjects: Discrimination -- Mental health
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47443 , vital:39991
- Description: Section 9 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to equality. The Employment Equity Act, the Promotion and Prevention of Unfair Discrimination Act and the Labour Relations Act were promulgated to fulfil the Constitution’s goals of promoting equality and prohibiting unfair discrimination. Section 6(1) of The Employment Equity Act promotes equality in the workplace and prohibits unfair discrimination; section 187 of the Labour Relations Act provides that dismissals on the grounds listed in the section are automatically unfair; and section 6 of the Promotion and Prevention of Unfair Discrimination Act prohibits unfair discrimination in general. International law prohibits unfair discrimination. Article 1 of the International Labour Organisation’s Convention concerning Discrimination in Respect of Employment and Occupation provides that discrimination in the workplace that has the effect of impairing or nullifying equal opportunity or treatment is prohibited; Article 7 of the United Nations Declaration of Human Rights provides that all are equal before the law and are entitled to protection against any discrimination; and the United Nations Charter and the African United Charter on Human and People’s Rights both promote the right to equality. South Africa has signed and/or ratified these international anti-discrimination laws, and is, accordingly, bound by them. The South African anti-discrimination legislation and international anti-discrimination laws prohibit unfair discrimination, whether it is direct or indirect, or on a listed (that is, a specified ground such as race or disability) or unlisted ground, on a policy, rule or practice. Discrimination based on a listed ground is presumed to be unfair. If discrimination is based on an unlisted ground, the complainant must prove that the discrimination is unfair by applying the Harksen v Lane NO 1997 (11) BCLR 1489 (CC) test. The Harksen v Lane NO test asks whether the discrimination has the attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the answer is yes, the discrimination is unfair. Mental illness is not a listed ground, meaning it is unlisted. The Labour Appeal Court and Labour Court have, therefore, had to consider whether discriminating against an employee on the basis of their mental illness is unfair, or dismissing them because of their mental illness constituted an automatically unfair dismissal. In the leading case of New Way Motor & Diesel Engineering (Pty)Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court applied the Harksen v Lane NO test and held that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. In the recent case of Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17, the Labour Court agreed with the Labour Appeal Court decision in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland that dismissing an employee because of their mental illness is automatically unfair in terms of section 187(1)(f) of the LRA, and unfair discrimination in terms of section 6(1) of the EEA. Despite the consistency in case law, the anti-discrimination legislation does not list mental illness as an unfair ground, which means unfairness cannot be presumed. The complainant must, accordingly, prove the dismissal is automatically unfair in terms of section 187(1)(f) of the LRA or that it is unfair discrimination in terms of section 6(1) of the EEA.
- Full Text:
- Date Issued: 2020
- Authors: Skosana, Hlengiwe
- Date: 2020
- Subjects: Discrimination -- Mental health
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47443 , vital:39991
- Description: Section 9 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to equality. The Employment Equity Act, the Promotion and Prevention of Unfair Discrimination Act and the Labour Relations Act were promulgated to fulfil the Constitution’s goals of promoting equality and prohibiting unfair discrimination. Section 6(1) of The Employment Equity Act promotes equality in the workplace and prohibits unfair discrimination; section 187 of the Labour Relations Act provides that dismissals on the grounds listed in the section are automatically unfair; and section 6 of the Promotion and Prevention of Unfair Discrimination Act prohibits unfair discrimination in general. International law prohibits unfair discrimination. Article 1 of the International Labour Organisation’s Convention concerning Discrimination in Respect of Employment and Occupation provides that discrimination in the workplace that has the effect of impairing or nullifying equal opportunity or treatment is prohibited; Article 7 of the United Nations Declaration of Human Rights provides that all are equal before the law and are entitled to protection against any discrimination; and the United Nations Charter and the African United Charter on Human and People’s Rights both promote the right to equality. South Africa has signed and/or ratified these international anti-discrimination laws, and is, accordingly, bound by them. The South African anti-discrimination legislation and international anti-discrimination laws prohibit unfair discrimination, whether it is direct or indirect, or on a listed (that is, a specified ground such as race or disability) or unlisted ground, on a policy, rule or practice. Discrimination based on a listed ground is presumed to be unfair. If discrimination is based on an unlisted ground, the complainant must prove that the discrimination is unfair by applying the Harksen v Lane NO 1997 (11) BCLR 1489 (CC) test. The Harksen v Lane NO test asks whether the discrimination has the attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the answer is yes, the discrimination is unfair. Mental illness is not a listed ground, meaning it is unlisted. The Labour Appeal Court and Labour Court have, therefore, had to consider whether discriminating against an employee on the basis of their mental illness is unfair, or dismissing them because of their mental illness constituted an automatically unfair dismissal. In the leading case of New Way Motor & Diesel Engineering (Pty)Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court applied the Harksen v Lane NO test and held that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. In the recent case of Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17, the Labour Court agreed with the Labour Appeal Court decision in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland that dismissing an employee because of their mental illness is automatically unfair in terms of section 187(1)(f) of the LRA, and unfair discrimination in terms of section 6(1) of the EEA. Despite the consistency in case law, the anti-discrimination legislation does not list mental illness as an unfair ground, which means unfairness cannot be presumed. The complainant must, accordingly, prove the dismissal is automatically unfair in terms of section 187(1)(f) of the LRA or that it is unfair discrimination in terms of section 6(1) of the EEA.
- Full Text:
- Date Issued: 2020
Unfair discrimination and affirmative action in the workplace
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
- Full Text:
- Date Issued: 2018
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
- Full Text:
- Date Issued: 2018
Trade union liability for unprotected strike action and violence in furtherance thereof
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
The validity of dismissals for refusing to accept changes to terms and conditions of employment
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
The unfair labour practice relating to suspension
- Authors: Moela, Matlose Phineas
- Date: 2018
- Subjects: Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23038 , vital:30398
- Description: This treatise considers unfair-labour- practice relating to suspensions in the workplace. Furthermore the treatise outlines the legal framework relating to suspensions in the workplace. As I explore this fundamental issues of the law, the fairness relating to suspension will be examined. Some recommendations are also made as to how departments and organisations must develop guidelines and policies which are legally sound to deal with suspension in the workplace. Employees often challenge the fairness of their suspension in the workplace. These challenges are based on a number of things, including failure to provide an employee to make representations, failure to comply with policies regulating suspensions in the workplace, suspension without pay, prolonged suspensions, etc. The treatise therefore also consider these challenges as well as the recourse available to employees. The treatise commences with the legal framework and principles contained in the Labour Relations Act, 66 of 1995 (hereinafter referred to as the LRA) applicable to suspensions. The treatise then considers other legislation and recent developments in both the public and private sector. The study concludes with remedies available to employees in instances where an unfair-labour-practice relating to suspension has been found to be committed by an employer during the suspension process.
- Full Text:
- Date Issued: 2018
- Authors: Moela, Matlose Phineas
- Date: 2018
- Subjects: Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23038 , vital:30398
- Description: This treatise considers unfair-labour- practice relating to suspensions in the workplace. Furthermore the treatise outlines the legal framework relating to suspensions in the workplace. As I explore this fundamental issues of the law, the fairness relating to suspension will be examined. Some recommendations are also made as to how departments and organisations must develop guidelines and policies which are legally sound to deal with suspension in the workplace. Employees often challenge the fairness of their suspension in the workplace. These challenges are based on a number of things, including failure to provide an employee to make representations, failure to comply with policies regulating suspensions in the workplace, suspension without pay, prolonged suspensions, etc. The treatise therefore also consider these challenges as well as the recourse available to employees. The treatise commences with the legal framework and principles contained in the Labour Relations Act, 66 of 1995 (hereinafter referred to as the LRA) applicable to suspensions. The treatise then considers other legislation and recent developments in both the public and private sector. The study concludes with remedies available to employees in instances where an unfair-labour-practice relating to suspension has been found to be committed by an employer during the suspension process.
- Full Text:
- Date Issued: 2018
The status of employees employed by temporary employment services
- Authors: Strydom, Masunet
- Date: 2017
- Subjects: Employment agencies -- South Africa , Labor laws and legislation -- South Africa Employees -- South Africa Personnel management -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13680 , vital:27295
- Description: The traditional employer-employee relationship came under an increased threat the past two decades with employers finding the option of utilising the services of Labour Brokers more attractive. Various reasons existed for this tendency amongst employers to opt for the use of Labour Brokers, some of these reasons being valid but mostly some reasons being born out of fear for the unknown labour law duties and obligations that were proposed to be placed on employers post 1994. In the absence of an action plan between the role players in the labour fraternity pathing the way traditional employer-employee relationships could be salvage, employers resorted to the appointment of Labour Brokers and Government on their part retaliated by considering either the total ban of Labour Brokers or the regulation of the profession to such an extent that same became largely unattractive and problematic. The non-addressing of problems and fears faced with by employers post 1994 resulted in an opportunity waisted to narrow the gap between employers and employees with the fight over work force power being the more important factor taken into consideration. This treatise will explore the options that faced the roll players post 1994 in the labour market, the reason for choices made and the effect same has had since on the labour market. The problematic amendments made to Section 198 of the Labour Relations Act in an attempt to iron out the wrinkles poor choices made by the stake holders over the regulations of Labour Brokers, will be discussed. The ripple effect the amendments to Section 198 of the Labour Relations Act had on other pieces of South African legislation will be considered and the uncertainty and confusion it has created discussed. Specific attention needs to be drawn to the intention of the legislature as to which party, the Labour Broker or employer, will be responsible for the ramifications of the wrong doings of an employee. Also, which party will be responsible to the employee to fulfil its labour rights as granted in the Constitution of South Africa. Unleashing reaction to the regulations of Temporary Employment Services does not seem to be a problem, the problem arises where the regulations proposed did not unleashed the desired reaction and roll players finding themselves frustrated and with having no alternative as to turn the Courts to solve the largely self-inflicted conundrum. The courts are left with the task of clarifying the legislature’s true intension in amending section 198 of the Labour Relations Act, which impact the writer with all due respect do not think the legislature even appreciated when the amendments were drafted. Currently, there is dividing views on the future of Labour Brokers per se in South Africa and the interpretation concerning Section 198 of the Labour Relations Act, as amended. The focus of this treatise is to highlight the different interpretations given to these amendments this far and highlight that if it is in fact the wish of stake holders in the Labour fraternity that Labour Brokers should continue to exist, clarification is needed by our Constitution Court on certain vital issues and as discussed in this treatise.
- Full Text:
- Date Issued: 2017
- Authors: Strydom, Masunet
- Date: 2017
- Subjects: Employment agencies -- South Africa , Labor laws and legislation -- South Africa Employees -- South Africa Personnel management -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/13680 , vital:27295
- Description: The traditional employer-employee relationship came under an increased threat the past two decades with employers finding the option of utilising the services of Labour Brokers more attractive. Various reasons existed for this tendency amongst employers to opt for the use of Labour Brokers, some of these reasons being valid but mostly some reasons being born out of fear for the unknown labour law duties and obligations that were proposed to be placed on employers post 1994. In the absence of an action plan between the role players in the labour fraternity pathing the way traditional employer-employee relationships could be salvage, employers resorted to the appointment of Labour Brokers and Government on their part retaliated by considering either the total ban of Labour Brokers or the regulation of the profession to such an extent that same became largely unattractive and problematic. The non-addressing of problems and fears faced with by employers post 1994 resulted in an opportunity waisted to narrow the gap between employers and employees with the fight over work force power being the more important factor taken into consideration. This treatise will explore the options that faced the roll players post 1994 in the labour market, the reason for choices made and the effect same has had since on the labour market. The problematic amendments made to Section 198 of the Labour Relations Act in an attempt to iron out the wrinkles poor choices made by the stake holders over the regulations of Labour Brokers, will be discussed. The ripple effect the amendments to Section 198 of the Labour Relations Act had on other pieces of South African legislation will be considered and the uncertainty and confusion it has created discussed. Specific attention needs to be drawn to the intention of the legislature as to which party, the Labour Broker or employer, will be responsible for the ramifications of the wrong doings of an employee. Also, which party will be responsible to the employee to fulfil its labour rights as granted in the Constitution of South Africa. Unleashing reaction to the regulations of Temporary Employment Services does not seem to be a problem, the problem arises where the regulations proposed did not unleashed the desired reaction and roll players finding themselves frustrated and with having no alternative as to turn the Courts to solve the largely self-inflicted conundrum. The courts are left with the task of clarifying the legislature’s true intension in amending section 198 of the Labour Relations Act, which impact the writer with all due respect do not think the legislature even appreciated when the amendments were drafted. Currently, there is dividing views on the future of Labour Brokers per se in South Africa and the interpretation concerning Section 198 of the Labour Relations Act, as amended. The focus of this treatise is to highlight the different interpretations given to these amendments this far and highlight that if it is in fact the wish of stake holders in the Labour fraternity that Labour Brokers should continue to exist, clarification is needed by our Constitution Court on certain vital issues and as discussed in this treatise.
- Full Text:
- Date Issued: 2017
The role of the CCMA and bargaining councils in labour dispute resolution
- Authors: Mkalipi, Thembinkosi
- Date: 2018
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration , Dispute resolution (Law) -- South Africa Arbitration, Industrial -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32182 , vital:31977
- Description: A feature of collective bargaining is that it has a habit of ending in deadlock. However, in the event of a dispute, an aggrieved party is not free to call an immediate strike or lockout. The Labour Relations Act of 1956 and the Labour Relations Act of 1995 (“the LRA”) provided for a strict procedure to be followed in an event of a dispute. The law before 1995 regarded industrial action in the case of a dispute that did not follow the procedure as an illegal act attracting criminal sanction. The law then distinguished between a dispute of right and a dispute of interest. Like many countries, South Africa, has a very violent history regarding the resolution of labour disputes. This is illustrated by the force and brutality that was used to solve the 1913 white miners’ strike after martial law was declared. The reaction of the employers and the state was more brutal. The same violence and brutality were applied in the 1914 railway-workers strike and the 1946 African workers strike. The most important purpose of labour law is to ensure labour peace will prevail in the labour market and to regulate relations between employer and employee. Labour peace ensures that the economy functions effectively and if this happens, society at large benefits greatly. In Chapter 1 of the LRA one of the purposes of the LRA is stated as: “the effective resolution of labour disputes.” This section is intended to give effect section 23(1) of the Constitution, which provide that, ‘‘everyone has the right to fair labour practices’’1. This treatise will analyse the role of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in dispute resolution; its functions and jurisdiction, ensure labour peace and whether the dispute resolution system provided in the law and implemented by the different dispute resolution institutions have succeeded to advance Constitution of the Republic of South Africa Act 108 [1996]. Economic development, social justice, labour peace and the democratisation of the workplace to fulfil the purpose of the LRA. Under the previous Labour Relations Act2 (the “1956 LRA”) disputes were resolved through three main institutions namely, Conciliation Boards, Industrial Councils and the Industrial Court3. A Conciliation Board was on ad hoc - body established by the Minister of Manpower on application by any one of the parties in dispute. There was no requirement for an agreement between the disputing parties to apply for the establishment of a Conciliation Board. Either party could approach the Minister for its establishment. This application could be made on the workers side by one or more registered trade unions, one or more employees, or one or more registered trade unions. On the employer’s side, the application can be made by one or more registered employers’ organisations or, one or more employers.
- Full Text:
- Date Issued: 2018
- Authors: Mkalipi, Thembinkosi
- Date: 2018
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration , Dispute resolution (Law) -- South Africa Arbitration, Industrial -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32182 , vital:31977
- Description: A feature of collective bargaining is that it has a habit of ending in deadlock. However, in the event of a dispute, an aggrieved party is not free to call an immediate strike or lockout. The Labour Relations Act of 1956 and the Labour Relations Act of 1995 (“the LRA”) provided for a strict procedure to be followed in an event of a dispute. The law before 1995 regarded industrial action in the case of a dispute that did not follow the procedure as an illegal act attracting criminal sanction. The law then distinguished between a dispute of right and a dispute of interest. Like many countries, South Africa, has a very violent history regarding the resolution of labour disputes. This is illustrated by the force and brutality that was used to solve the 1913 white miners’ strike after martial law was declared. The reaction of the employers and the state was more brutal. The same violence and brutality were applied in the 1914 railway-workers strike and the 1946 African workers strike. The most important purpose of labour law is to ensure labour peace will prevail in the labour market and to regulate relations between employer and employee. Labour peace ensures that the economy functions effectively and if this happens, society at large benefits greatly. In Chapter 1 of the LRA one of the purposes of the LRA is stated as: “the effective resolution of labour disputes.” This section is intended to give effect section 23(1) of the Constitution, which provide that, ‘‘everyone has the right to fair labour practices’’1. This treatise will analyse the role of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in dispute resolution; its functions and jurisdiction, ensure labour peace and whether the dispute resolution system provided in the law and implemented by the different dispute resolution institutions have succeeded to advance Constitution of the Republic of South Africa Act 108 [1996]. Economic development, social justice, labour peace and the democratisation of the workplace to fulfil the purpose of the LRA. Under the previous Labour Relations Act2 (the “1956 LRA”) disputes were resolved through three main institutions namely, Conciliation Boards, Industrial Councils and the Industrial Court3. A Conciliation Board was on ad hoc - body established by the Minister of Manpower on application by any one of the parties in dispute. There was no requirement for an agreement between the disputing parties to apply for the establishment of a Conciliation Board. Either party could approach the Minister for its establishment. This application could be made on the workers side by one or more registered trade unions, one or more employees, or one or more registered trade unions. On the employer’s side, the application can be made by one or more registered employers’ organisations or, one or more employers.
- Full Text:
- Date Issued: 2018
The return-to-work policy for injured and diseased workers
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
The regulation of the use of cannibis in the workplace
- Authors: Oberem, stacy Lee
- Date: 2020
- Subjects: Cannabis -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47403 , vital:39978
- Description: This treatise considers the implications of the judgment in Minister of Justice and Constitutional Development v Prince (2018) ZACC 30 in the workplace. It includes a critical study of cases prior and post the judgment and identifies the gaps within those judgments. It will consider various legislation pertaining to the topic and the critical differences when it comes to testing for intoxication of alcohol versus cannabis. To conclude, it will consider the challenges of having a zero-tolerance policy in the workplace and provide recommendations to employer’s substance abuse policies specifically relating to the use of cannabis and its effects within the workplace.
- Full Text:
- Date Issued: 2020
- Authors: Oberem, stacy Lee
- Date: 2020
- Subjects: Cannabis -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47403 , vital:39978
- Description: This treatise considers the implications of the judgment in Minister of Justice and Constitutional Development v Prince (2018) ZACC 30 in the workplace. It includes a critical study of cases prior and post the judgment and identifies the gaps within those judgments. It will consider various legislation pertaining to the topic and the critical differences when it comes to testing for intoxication of alcohol versus cannabis. To conclude, it will consider the challenges of having a zero-tolerance policy in the workplace and provide recommendations to employer’s substance abuse policies specifically relating to the use of cannabis and its effects within the workplace.
- Full Text:
- Date Issued: 2020
The protection offered in terms of the 2014 labour law amendments to fixed-term Contract and part-time employees
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
- Full Text:
- Date Issued: 2018
The protection against child labour in South Africa
- Authors: Abrahams, Collis
- Date: 2019
- Subjects: Child labor
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40204 , vital:35986
- Description: This treatise seeks to describe the legal protection of children against child labour in South Africa. It does so within the context of international-law-protection in the form of Conventions of the International Labour Organisation. The treatise distinguishes between the concepts of child labour and child work and traces the history of international law prohibiting and regulating child labour. The two most important ILO Conventions, Convention 138 of 1973 and 182 of 1998 are considered in some detail before the national legislature is explained and analysed. From the discussion it is apparent that South Africa is giving effect to the applicable ILO Conventions. Not only does national legislation prohibit child labour, the state also adopted nation-wide programmes to eradicate child labour. Despite the efforts there is still room for improvement. The fight to eradicate child labour must continue!
- Full Text:
- Date Issued: 2019
- Authors: Abrahams, Collis
- Date: 2019
- Subjects: Child labor
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40204 , vital:35986
- Description: This treatise seeks to describe the legal protection of children against child labour in South Africa. It does so within the context of international-law-protection in the form of Conventions of the International Labour Organisation. The treatise distinguishes between the concepts of child labour and child work and traces the history of international law prohibiting and regulating child labour. The two most important ILO Conventions, Convention 138 of 1973 and 182 of 1998 are considered in some detail before the national legislature is explained and analysed. From the discussion it is apparent that South Africa is giving effect to the applicable ILO Conventions. Not only does national legislation prohibit child labour, the state also adopted nation-wide programmes to eradicate child labour. Despite the efforts there is still room for improvement. The fight to eradicate child labour must continue!
- Full Text:
- Date Issued: 2019
The praxis of reasonability and onus of proof in tax administration in South Africa
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
- Full Text:
- Date Issued: 2018
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
- Full Text:
- Date Issued: 2018
The non-restoration of land: scope and ambit of section 34 of the restitution of land rights act
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
The national health insurance bill: a measure to realise the right to access health care services
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
The legality and enforceability of an automatic termination clause in the contract of employment
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
The legalisation of prostitution in South Africa
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019
The legal remedies to protect minors against cyberbullying in South Africa
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
- Authors: Hlazo, Nonhlanhla Irene
- Date: 2018
- Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30271 , vital:30914
- Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
- Full Text:
- Date Issued: 2018
The legal consequences of unprotected strikes
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
The international arbitration act and dispute resolution
- Authors: Mkorongo, Michelle
- Date: 2020
- Subjects: Dispute resolution (Law) -- Africa , International commercial arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49005 , vital:41592
- Description: Worldwide, states that had incorporated international standards of arbitration or drew influence from them, thrived in providing effective and efficient resolution of international commercial disputes. However, since 1965, there had been little to no increase in resolving international commercial disputes between private parties in South Africa, either through the court or arbitration. As a result, private parties were drawn to arbitrating in states that had incorporated these international standards and conformed to the aim of unifying arbitral regulation. This study aims to determine what South Africa’s response was in dealing with international commercial disputes and the development of arbitration as an appropriate dispute resolution mechanism. Based on the premise that arbitration is regarded as a popular dispute resolution mechanism when it comes to international trade transactions globally, this study will unpack why arbitration in South Africa did not reflect this premise. A thorough analysis of how international arbitration and its regulation developed globally will be conducted to show at what point uniform regulation came about. The results will indicate in what ways South Africa’s regulatory framework was insufficient to deal with international arbitration and will show how it took a considerable amount of time to regulate arbitration appropriately. Upon regulating international arbitration in 2017, the study will show other ways that South Africa can enhance itself in terms of providing a comprehensive regulatory framework and position itself as an ideal seat of arbitration in Africa.
- Full Text:
- Date Issued: 2020
- Authors: Mkorongo, Michelle
- Date: 2020
- Subjects: Dispute resolution (Law) -- Africa , International commercial arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49005 , vital:41592
- Description: Worldwide, states that had incorporated international standards of arbitration or drew influence from them, thrived in providing effective and efficient resolution of international commercial disputes. However, since 1965, there had been little to no increase in resolving international commercial disputes between private parties in South Africa, either through the court or arbitration. As a result, private parties were drawn to arbitrating in states that had incorporated these international standards and conformed to the aim of unifying arbitral regulation. This study aims to determine what South Africa’s response was in dealing with international commercial disputes and the development of arbitration as an appropriate dispute resolution mechanism. Based on the premise that arbitration is regarded as a popular dispute resolution mechanism when it comes to international trade transactions globally, this study will unpack why arbitration in South Africa did not reflect this premise. A thorough analysis of how international arbitration and its regulation developed globally will be conducted to show at what point uniform regulation came about. The results will indicate in what ways South Africa’s regulatory framework was insufficient to deal with international arbitration and will show how it took a considerable amount of time to regulate arbitration appropriately. Upon regulating international arbitration in 2017, the study will show other ways that South Africa can enhance itself in terms of providing a comprehensive regulatory framework and position itself as an ideal seat of arbitration in Africa.
- Full Text:
- Date Issued: 2020
The interests of justice in bail proceedings
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019