Dismissal law in the education sector
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
Dismissal of members of the South African Police Service for criminal convictions
- Authors: Deysel, Petrus Gerhardus
- Date: 2015
- Subjects: Employees -- Dismissal of -- South Africa , Police corruption -- South Africa , Judgments, Criminal -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6084 , vital:21037
- Description: The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.
- Full Text:
- Date Issued: 2015
- Authors: Deysel, Petrus Gerhardus
- Date: 2015
- Subjects: Employees -- Dismissal of -- South Africa , Police corruption -- South Africa , Judgments, Criminal -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6084 , vital:21037
- Description: The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.
- Full Text:
- Date Issued: 2015
Dismissals within the context of collective bargaining
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
Disputes about the interpretation, application and breach of collective agreements
- Roelofse, Cornelius Johannes
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
- Full Text:
- Date Issued: 2016
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
- Full Text:
- Date Issued: 2016
Domestication of the international-law prohibition of child soldiering
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
Dumping, antidumping and the future prospects for fair international trade
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
Education is an essential service
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
Effecting social justice during conciliation and CON-ARB processes conducted at the CCMA and bargaining councils
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
Employee pension and provident fund rights
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
Employer liability for sexual harassment in the workplace revisited
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
Enlarging the place of human rights and development in international trade regulation: an evaluation of the problems and prospects of incorporating a social clause in the legal framework of the World Trade Organization
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
Equal pay for equal work
- Authors: Paul, Gary William
- Date: 2016
- 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/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
- Authors: Paul, Gary William
- Date: 2016
- 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/10948/5343 , vital:20830
- Description: The notion of Decent Work has been broadly advocated since 1999 by means of various International Labour Organisation (ILO) Conventions. Through these Conventions and as part of its Decent Work Agenda, the ILO strives to foster the creation of social and economic systems, capable of ensuring basic security and employment and adaptable to rapidly changing local and global economic circumstances. The Decent Work Agenda has been widely accepted as an important strategy to eradicate poverty and enable socio-economic development. It is submitted that the concept of Decent Work as contemplated by the ILO, firstly focuses on the payment of an income, which allows the working individual a good life. It secondly strives to ensure that everybody has an equal chance to develop themselves; that working conditions are safe; that there is no instance of child and forced labour; and that discrimination does not occur. The elimination of discrimination in the workplace is not only an ever-evolving pursuit, given that it continues to manifest in innumerable forms, but it has also proven to be an extremely pervasive pursuit as evidenced by the jurisdiction-specific literature review in this study. The jurisdictions focused on in this study are the United States of America, the United Kingdom and Australia. This study concerns itself with pay-related discrimination which strains ILO Conventions No 100 and 111. Convention 100 focuses on equal pay for equal work and Convention No 111 focuses on the elimination of all forms of discrimination in the workplace. In spite of extensive legislative developments in the various jurisdictions which form part of this study, enhanced by the creation of various practical mechanisms to enable the elimination of pay-related discrimination, the stubborn problem of discriminatory pay practices has survived structured and deliberate attempts to get rid of it. In South Africa, the amendment to section 6(4) of the Employment Equity Act, assented on 1 August 2014, specifically describes a difference in conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value based on any one or more of the grounds listed in section 6(1), as unfair discrimination. This amendment therefore seeks to prohibit such unfair discriminatory practices. Based on the newness of this amendment and the fact that courts have not yet delivered judgments arising from litigation related to this particular amendment, a sense of uncertainty exists with respect to the adequacy of the amended section 6 in the Employment Equity Amendment Act. If progress in the other jurisdictions in this regard is anything to go by, there is no reason to believe that the amendment to section 6 will be a panacea capable of addressing all alleged discriminatory pay practices.
- Full Text:
- Date Issued: 2016
Equal pay for work of equal value
- Authors: Leo, Aloshea Doreen
- Date: 2019
- 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/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019
- Authors: Leo, Aloshea Doreen
- Date: 2019
- 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/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019
Essential services in light of the 2014 Labour Law amendments
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
Establishing good cause subsequent to a deemed dismissal
- Authors: Rafapa, Malose Given
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Civil service -- Dismissal of -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11425 , vital:26922
- Description: The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
- Full Text:
- Date Issued: 2017
- Authors: Rafapa, Malose Given
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Civil service -- Dismissal of -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11425 , vital:26922
- Description: The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
- Full Text:
- Date Issued: 2017
Euthanasia: a modern legal perspective
- Authors: Welgemoed, Marc
- Date: 2013
- Subjects: Right to die -- Law and legislation -- South Africa Terminally ill -- Legal status, laws, etc. -- South Africa , Euthanasia -- South Africa Assisted suicide -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45849 , vital:39222
- Description: Euthanasia and assisted suicide is currently illegal in South Africa and amounts to murder. Despite the fact that South Africa has a Constitution, including a Bill of Rights, as well as strong lobbying in favour of the legalization of euthanasia, no legal changes have been effected. Other issues closely intricated with euthanasia, like the so-called “living wills” and palliative care, where an increase of medication can possibly shorten the lifespan of a patient (“double-effect”-medication), are also problematic at the moment. The South African Law Commission has made recommendations regarding the legalization of euthanasia and assisted suicide, as well as the validity of living wills and “double-effect” palliative care practices as far back as 1997, but to present none of the recommendations had been adhered to. The only indication in favour of the toleration of euthanasia and assisted suicide is that the courts have handed down lenient sentences in cases of this nature. In this treatise the legal position in South Africa is compared to that applicable in the Netherlands and in Canada in an attempt to see whether or not South Africa can learn something from these countries as far as the development of its own legal system, relating to euthanasia, is concerned. The Termination of End of Life Decisions and Assisted Suicide Act is applicable in the Netherlands and legalizes euthanasia and assisted suicide subject to strict requirements being complied with. Although euthanasia is illegal in Canada, the courts have recently shown a noteworthy human rights approach that almost resulted in the legal position in the province of British Columbia being changed. It will be submitted that South Africa must take thorough note of these two foreign legal systems, as well as of the recommendations of the South African Law Commission and the Bill of Rights, especially the rights to life, dignity, equality and freedom and security of the person.
- Full Text:
- Date Issued: 2013
- Authors: Welgemoed, Marc
- Date: 2013
- Subjects: Right to die -- Law and legislation -- South Africa Terminally ill -- Legal status, laws, etc. -- South Africa , Euthanasia -- South Africa Assisted suicide -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45849 , vital:39222
- Description: Euthanasia and assisted suicide is currently illegal in South Africa and amounts to murder. Despite the fact that South Africa has a Constitution, including a Bill of Rights, as well as strong lobbying in favour of the legalization of euthanasia, no legal changes have been effected. Other issues closely intricated with euthanasia, like the so-called “living wills” and palliative care, where an increase of medication can possibly shorten the lifespan of a patient (“double-effect”-medication), are also problematic at the moment. The South African Law Commission has made recommendations regarding the legalization of euthanasia and assisted suicide, as well as the validity of living wills and “double-effect” palliative care practices as far back as 1997, but to present none of the recommendations had been adhered to. The only indication in favour of the toleration of euthanasia and assisted suicide is that the courts have handed down lenient sentences in cases of this nature. In this treatise the legal position in South Africa is compared to that applicable in the Netherlands and in Canada in an attempt to see whether or not South Africa can learn something from these countries as far as the development of its own legal system, relating to euthanasia, is concerned. The Termination of End of Life Decisions and Assisted Suicide Act is applicable in the Netherlands and legalizes euthanasia and assisted suicide subject to strict requirements being complied with. Although euthanasia is illegal in Canada, the courts have recently shown a noteworthy human rights approach that almost resulted in the legal position in the province of British Columbia being changed. It will be submitted that South Africa must take thorough note of these two foreign legal systems, as well as of the recommendations of the South African Law Commission and the Bill of Rights, especially the rights to life, dignity, equality and freedom and security of the person.
- Full Text:
- Date Issued: 2013
Evaluating the exclusion of certain categories of workers from the coverage of the unemployment insurance act 63 of 2001 and the consequences thereof
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
Expanding access to essential medicines through the right to health: a case study of South Africa
- Authors: Motamakore, Shelton Tapiwa
- Date: 2015
- Subjects: Right to health -- South Africa Medical care -- Law and legislation -- South Africa AIDS (Disease) -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5620 , vital:29352
- Description: Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
- Full Text:
- Date Issued: 2015
- Authors: Motamakore, Shelton Tapiwa
- Date: 2015
- Subjects: Right to health -- South Africa Medical care -- Law and legislation -- South Africa AIDS (Disease) -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5620 , vital:29352
- Description: Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
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- Date Issued: 2015