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
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
Labour dispute resolution in South Africa and Malawi: a comparative study
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
A trade union’s right to strike to acquire organisational rights
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
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
A critical analysis of South African anti-money laundering legislation regarding cryptocurrency
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
Labour dispute resolution in Uganda
- Chabo, Godsent, Ndimurwimo, Leah A
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
Constitutional and human-rights aspects of marine spatial planning
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- Full Text:
- Date Issued: 2018
- Authors: Chasakara, Rachael Sharon
- Date: 2018
- Subjects: Human rights , Marine resources development -- Law and legislation Law of the sea
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23470 , vital:30566
- Description: The importance of oceans cannot be overstated as they are vital for the environmental and economic well-being of South Africa. The state of South Africa’s ocean is on the decline due to increased human activities within its waters, which have caused devastation among marine resources that are limited in space, time and amount. These activities have caused elevated competition among ocean users resulting in undesirable effects such as loss of biodiversity. The challenge is not that these human activities are unregulated or unplanned, rather that there are planned and regulated on a sectoral basis by different sectors each with its own specific approach to the allocation and use of the ocean space. There is, therefore, a need for a holistic approach to ocean governance that views the ocean as a whole and not merely on a sectoral basis. The relatively new notion of Marine Spatial Planning (MSP) which establishes its authority in MSP instruments,1 has emerged as a comprehensive way to achieve this. This dissertation grapples with the questions surrounding whether the MSP instruments are consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution). The dissertation departs by providing a background into the spatial jurisdiction of coastal states in the ocean space to clarify how far at sea South Africa can exercise its authority. This study concluded that even though the area of application claimed by the MSP Bill is consistent with the internationally prescribed territory of coastal states at sea, the MSP Bill should expressly state the different sovereign rights vested in coastal states by the United Nations Convention on the Law of the Sea, 1982 (‘the LOSC’) subject to the rights of other states in these waters. From here, the dissertation ventures into an analysis of which organs of state will be responsible for the development and implementation of MSP since it is an exercise of public power by the state. This part of the discussion involves inter alia an in-depth analysis of the separation of powers doctrine as far as planning matters are concerned. An essential premise is that MSP regulation requires all spheres of government to cooperate with each other. It is proposed that the MSP Bill should 1 The MSP Bill, GN 347 in GG 39847 of 2016-03-24 and the National MSP Framework for South Africa, GN 936 in GG 40219 of 2016-08-19. provide how these spheres of government should work together for the successful implementation of MSP. This dissertation then proceeds to discuss the right to equality, the environmental right, and the right to freedom of trade, occupation and profession which could potentially be impacted by the implementation of MSP. It is submitted that in the implementation of MSP, the goal must be to achieve an appropriate balance amongst these competing rights. Finally, considering the above analysis and discussions this dissertation moves to propose recommendations on how the MSP instruments can be amended to give effect to the requirements of these rights. Generally, the findings of this research reflect the consistency of the MSP instruments with the Constitution. However, for MSP to be implemented constitutionally, the proposed recommendations must be adhered to.
- 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 ground of discrimination in equal pay for work of equal value disputes
- Authors: Coetzee, Mandy Nadine
- Date: 2020
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48971 , vital:41569
- Description: The Employment Equity Act places a positive obligation on employers to promote workplaces free from unfair discrimination. This obligation is reinforced by section 6 of the Employment Equity Act, commonly referred to as the prohibition clause. The 2014 amendments to the Employment Equity Act specifically introduced provisions relating to Equal Pay for Work of Equal Value which prior to 2014, had no specific provisions to guide employees and employers in relation to claims of discrimination, relating to remuneration and terms and conditions of employment. As such employees had to rely directly on section 6(1) to bring such claims which presented significant problems and challenges with the onus. The second key amendment for our purposes relates to the inclusion of the arbitrary ground under section 6(1) as a ground on which discrimination is also prohibited. In addition to the insertion and specific inclusion into law, the burden of proof in section 11 was also amended and must be read with the prohibition clause. It is this aspect which now confronts us with challenges and divergent approaches by the Courts and the development of the broad versus narrow approach in dealing with the ground of discrimination.
- Full Text:
- Date Issued: 2020
- Authors: Coetzee, Mandy Nadine
- Date: 2020
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48971 , vital:41569
- Description: The Employment Equity Act places a positive obligation on employers to promote workplaces free from unfair discrimination. This obligation is reinforced by section 6 of the Employment Equity Act, commonly referred to as the prohibition clause. The 2014 amendments to the Employment Equity Act specifically introduced provisions relating to Equal Pay for Work of Equal Value which prior to 2014, had no specific provisions to guide employees and employers in relation to claims of discrimination, relating to remuneration and terms and conditions of employment. As such employees had to rely directly on section 6(1) to bring such claims which presented significant problems and challenges with the onus. The second key amendment for our purposes relates to the inclusion of the arbitrary ground under section 6(1) as a ground on which discrimination is also prohibited. In addition to the insertion and specific inclusion into law, the burden of proof in section 11 was also amended and must be read with the prohibition clause. It is this aspect which now confronts us with challenges and divergent approaches by the Courts and the development of the broad versus narrow approach in dealing with the ground of discrimination.
- Full Text:
- Date Issued: 2020
Regulation of minimum wages and minimum conditions of employment in the citrus industry in the Gamtoos river valley
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
The African Continental Free Trade Agreement in Context
- Authors: Conjwa, Siviwe
- Date: 2020
- Subjects: Customs unions -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47347 , vital:39849
- Description: The economic integration of the African continent has been an ideal pursued by most African states for a considerable number of years. This has been due to the notion that regional integration offers greater opportunities for developing states participating in global trade. Regional integration is regarded by some states as crucial to the alleviation of poverty on the African continent and, to this end, several African states have formed part of several regional blocs on the continent. The African Continental Free Trade Agreement (hereafter the AfCFTA) was signed in 2018, with the intention of removing barriers to the free movement of goods and services on the continent. The rationale behind the AfCFTA is that greater opportunities for the development of the African continent can be unlocked if the economies of the continent can be amalgamated into a single market. The AfCFTA is set to be the world’s largest free trade area, bringing together 55 states with a combined population of more than 1 billion people. This research contextualises the establishment of the AfCFTA within the greater context of the integration agenda of the African continent. Of particular significance is the role of the already existing Regional Economic Communities in the formulation of the AfCFTA, as well as the question as to whether global trade provisions regulating the creation of free trade areas have been complied with by the AfCFTA. The manner in which regional agreements are implemented by member states is also an important discussion that forms a part of this research. This is to ensure that some of the potential challenges in the implementation of the AfCFTA are laid bare, so as to ensure that the objectives thereof are attained as envisaged.
- Full Text:
- Date Issued: 2020
- Authors: Conjwa, Siviwe
- Date: 2020
- Subjects: Customs unions -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47347 , vital:39849
- Description: The economic integration of the African continent has been an ideal pursued by most African states for a considerable number of years. This has been due to the notion that regional integration offers greater opportunities for developing states participating in global trade. Regional integration is regarded by some states as crucial to the alleviation of poverty on the African continent and, to this end, several African states have formed part of several regional blocs on the continent. The African Continental Free Trade Agreement (hereafter the AfCFTA) was signed in 2018, with the intention of removing barriers to the free movement of goods and services on the continent. The rationale behind the AfCFTA is that greater opportunities for the development of the African continent can be unlocked if the economies of the continent can be amalgamated into a single market. The AfCFTA is set to be the world’s largest free trade area, bringing together 55 states with a combined population of more than 1 billion people. This research contextualises the establishment of the AfCFTA within the greater context of the integration agenda of the African continent. Of particular significance is the role of the already existing Regional Economic Communities in the formulation of the AfCFTA, as well as the question as to whether global trade provisions regulating the creation of free trade areas have been complied with by the AfCFTA. The manner in which regional agreements are implemented by member states is also an important discussion that forms a part of this research. This is to ensure that some of the potential challenges in the implementation of the AfCFTA are laid bare, so as to ensure that the objectives thereof are attained as envisaged.
- Full Text:
- Date Issued: 2020
Legal remedies against corruption: lessons from Guatemala
- Cordell, Cameron George Thomas
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
The enforceability of by-laws of district municipalities on local municipalities with specific reference to solid waste disposal
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
The concept of equal pay for equal work
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
Dismissal for racist remarks and racism
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
The criminalization of HIV and the significance of knowledge: a comparative study
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
The effect of the amendments to the labour relations act on collective labour law and proliferation of the unions
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
Substantive fairness in the context of dismissal for team misconduct
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
Rethinking minimum sentence Legislation
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020