An analysis of the South African common law defence of moderate and reasonable child chastisement
- Authors: Maqhosha, Noluthando
- Date: 2016
- Subjects: Common law Corporal punishment
- Language: English
- Type: Thesis , Masters , Degree
- Identifier: http://hdl.handle.net/10353/5447 , vital:29248
- Description: The study sought to analyse the South African common law defence of moderate and reasonable child chastisement. Regarded by those with religious and cultural beliefs as a way of instilling child discipline, child chastisement has been a centre of contestation in recent years. Constitutionally, children have rights to care, dignity and protection. Thus, child chastisement infringes upon these rights. However, regardless of its intentions, child chastisement has an effect of inflicting pain onto its victims thereby infringing on their rights to human dignity, equality and protection. It can also lead to unintended consequences such as injury or death to its victims. Subjecting children to this cruel, inhuman and degrading action affects the development of children and sometimes haunts them at a later stage in life. In addition, child chastisement lacks the measure of determining whether it is moderate or severe, thereby making it prone to abuse or misuse. The study used a qualitative research paradigm, where data was collected from existing documents and analysed towards understanding child chastisement and finding sustainable ways of improving child welfare in the home or in society. The study also analysed the legal framework on child welfare and chastisement globally, regionally and locally. Instruments such as the UNCRC, ACRWC and the UDHR have a clear stance abolishing child chastisement. The study established that, despite the existence of global instruments promoting child care and protection, the common law defence of corporal punishment in the home and society remains a loophole that needs closing and enactment of laws that outlaws it completely.
- Full Text:
- Date Issued: 2016
- Authors: Maqhosha, Noluthando
- Date: 2016
- Subjects: Common law Corporal punishment
- Language: English
- Type: Thesis , Masters , Degree
- Identifier: http://hdl.handle.net/10353/5447 , vital:29248
- Description: The study sought to analyse the South African common law defence of moderate and reasonable child chastisement. Regarded by those with religious and cultural beliefs as a way of instilling child discipline, child chastisement has been a centre of contestation in recent years. Constitutionally, children have rights to care, dignity and protection. Thus, child chastisement infringes upon these rights. However, regardless of its intentions, child chastisement has an effect of inflicting pain onto its victims thereby infringing on their rights to human dignity, equality and protection. It can also lead to unintended consequences such as injury or death to its victims. Subjecting children to this cruel, inhuman and degrading action affects the development of children and sometimes haunts them at a later stage in life. In addition, child chastisement lacks the measure of determining whether it is moderate or severe, thereby making it prone to abuse or misuse. The study used a qualitative research paradigm, where data was collected from existing documents and analysed towards understanding child chastisement and finding sustainable ways of improving child welfare in the home or in society. The study also analysed the legal framework on child welfare and chastisement globally, regionally and locally. Instruments such as the UNCRC, ACRWC and the UDHR have a clear stance abolishing child chastisement. The study established that, despite the existence of global instruments promoting child care and protection, the common law defence of corporal punishment in the home and society remains a loophole that needs closing and enactment of laws that outlaws it completely.
- Full Text:
- Date Issued: 2016
The establishment of an African criminal court: strengths and weaknesses
- Authors: Philimon, Levina Kiiza
- Date: 2012
- Subjects: International criminal law -- Africa , Criminal courts -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10288 , http://hdl.handle.net/10948/d1019828
- Description: This treatise addresses the possible creation of an African criminal court for individual criminal responsibility for crime of genocide, crimes against humanity, and war crimes. It does so by critically analysing the Statutes of Special Court of Sierra Leone, International Criminal Tribunal for Rwanda, and Rome Statute of the International Criminal Court in relation to the provisions addressing the principle of individual criminal responsibility, jurisdiction, amnesty and immunity. Another aim is to indicate the strength and weaknesses of the cited statutes in relation to the above provisions. Finally a further aim is to provide an analysis of the statutes, and any other international law applicable and determine whether Africa needs a separate criminal court. The principle conclusion is that statutes are facing challenges in relations to the provisions above. It is established that Africa does not have a regional criminal court and the African Union has attempted to extend jurisdiction of the African Court of Justice and Human Rights to criminal jurisdiction but the process has amounted to heavy criticism and unforeseen legal implications. It is eventually concluded that Africa may consider the creation of a separate criminal court for the future and such a court is currently not needed. Support should be given to the ICC.
- Full Text:
- Date Issued: 2012
- Authors: Philimon, Levina Kiiza
- Date: 2012
- Subjects: International criminal law -- Africa , Criminal courts -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10288 , http://hdl.handle.net/10948/d1019828
- Description: This treatise addresses the possible creation of an African criminal court for individual criminal responsibility for crime of genocide, crimes against humanity, and war crimes. It does so by critically analysing the Statutes of Special Court of Sierra Leone, International Criminal Tribunal for Rwanda, and Rome Statute of the International Criminal Court in relation to the provisions addressing the principle of individual criminal responsibility, jurisdiction, amnesty and immunity. Another aim is to indicate the strength and weaknesses of the cited statutes in relation to the above provisions. Finally a further aim is to provide an analysis of the statutes, and any other international law applicable and determine whether Africa needs a separate criminal court. The principle conclusion is that statutes are facing challenges in relations to the provisions above. It is established that Africa does not have a regional criminal court and the African Union has attempted to extend jurisdiction of the African Court of Justice and Human Rights to criminal jurisdiction but the process has amounted to heavy criticism and unforeseen legal implications. It is eventually concluded that Africa may consider the creation of a separate criminal court for the future and such a court is currently not needed. Support should be given to the ICC.
- Full Text:
- Date Issued: 2012
The requirement of "bumping" in operational-requirement dismissals
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
A comparison of the petroleum legislation of gabon and South Africa as instruments of development
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
The validity of dismissals for refusing to accept changes to terms and conditions of employment
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
Giving effect to the rights of remand detainees
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
Law of Evidence B: LCE 222/LCE 222E
- Authors: Maseti, Z M , Mopp, M
- Date: 2010-01
- Subjects: Evidence (Law)
- Language: English
- Type: Examination paper
- Identifier: vital:17362 , http://hdl.handle.net/10353/d1009814
- Description: Law of Evidence B: LCE 222/LCE 222E, January/February Supplementary Paper 2010
- Full Text: false
- Date Issued: 2010-01
- Authors: Maseti, Z M , Mopp, M
- Date: 2010-01
- Subjects: Evidence (Law)
- Language: English
- Type: Examination paper
- Identifier: vital:17362 , http://hdl.handle.net/10353/d1009814
- Description: Law of Evidence B: LCE 222/LCE 222E, January/February Supplementary Paper 2010
- Full Text: false
- Date Issued: 2010-01
Balancing the educator's rights to fair labour practices and to strike with the right to education
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
The Business Trust and its role as an entity in the financial environment
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
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
The role of the CCMA and bargaining councils in labour dispute resolution
- Authors: Mkalipi, Thembinkosi
- Date: 2018
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration , Dispute resolution (Law) -- South Africa Arbitration, Industrial -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32182 , vital:31977
- Description: A feature of collective bargaining is that it has a habit of ending in deadlock. However, in the event of a dispute, an aggrieved party is not free to call an immediate strike or lockout. The Labour Relations Act of 1956 and the Labour Relations Act of 1995 (“the LRA”) provided for a strict procedure to be followed in an event of a dispute. The law before 1995 regarded industrial action in the case of a dispute that did not follow the procedure as an illegal act attracting criminal sanction. The law then distinguished between a dispute of right and a dispute of interest. Like many countries, South Africa, has a very violent history regarding the resolution of labour disputes. This is illustrated by the force and brutality that was used to solve the 1913 white miners’ strike after martial law was declared. The reaction of the employers and the state was more brutal. The same violence and brutality were applied in the 1914 railway-workers strike and the 1946 African workers strike. The most important purpose of labour law is to ensure labour peace will prevail in the labour market and to regulate relations between employer and employee. Labour peace ensures that the economy functions effectively and if this happens, society at large benefits greatly. In Chapter 1 of the LRA one of the purposes of the LRA is stated as: “the effective resolution of labour disputes.” This section is intended to give effect section 23(1) of the Constitution, which provide that, ‘‘everyone has the right to fair labour practices’’1. This treatise will analyse the role of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in dispute resolution; its functions and jurisdiction, ensure labour peace and whether the dispute resolution system provided in the law and implemented by the different dispute resolution institutions have succeeded to advance Constitution of the Republic of South Africa Act 108 [1996]. Economic development, social justice, labour peace and the democratisation of the workplace to fulfil the purpose of the LRA. Under the previous Labour Relations Act2 (the “1956 LRA”) disputes were resolved through three main institutions namely, Conciliation Boards, Industrial Councils and the Industrial Court3. A Conciliation Board was on ad hoc - body established by the Minister of Manpower on application by any one of the parties in dispute. There was no requirement for an agreement between the disputing parties to apply for the establishment of a Conciliation Board. Either party could approach the Minister for its establishment. This application could be made on the workers side by one or more registered trade unions, one or more employees, or one or more registered trade unions. On the employer’s side, the application can be made by one or more registered employers’ organisations or, one or more employers.
- Full Text:
- Date Issued: 2018
- Authors: Mkalipi, Thembinkosi
- Date: 2018
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration , Dispute resolution (Law) -- South Africa Arbitration, Industrial -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32182 , vital:31977
- Description: A feature of collective bargaining is that it has a habit of ending in deadlock. However, in the event of a dispute, an aggrieved party is not free to call an immediate strike or lockout. The Labour Relations Act of 1956 and the Labour Relations Act of 1995 (“the LRA”) provided for a strict procedure to be followed in an event of a dispute. The law before 1995 regarded industrial action in the case of a dispute that did not follow the procedure as an illegal act attracting criminal sanction. The law then distinguished between a dispute of right and a dispute of interest. Like many countries, South Africa, has a very violent history regarding the resolution of labour disputes. This is illustrated by the force and brutality that was used to solve the 1913 white miners’ strike after martial law was declared. The reaction of the employers and the state was more brutal. The same violence and brutality were applied in the 1914 railway-workers strike and the 1946 African workers strike. The most important purpose of labour law is to ensure labour peace will prevail in the labour market and to regulate relations between employer and employee. Labour peace ensures that the economy functions effectively and if this happens, society at large benefits greatly. In Chapter 1 of the LRA one of the purposes of the LRA is stated as: “the effective resolution of labour disputes.” This section is intended to give effect section 23(1) of the Constitution, which provide that, ‘‘everyone has the right to fair labour practices’’1. This treatise will analyse the role of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in dispute resolution; its functions and jurisdiction, ensure labour peace and whether the dispute resolution system provided in the law and implemented by the different dispute resolution institutions have succeeded to advance Constitution of the Republic of South Africa Act 108 [1996]. Economic development, social justice, labour peace and the democratisation of the workplace to fulfil the purpose of the LRA. Under the previous Labour Relations Act2 (the “1956 LRA”) disputes were resolved through three main institutions namely, Conciliation Boards, Industrial Councils and the Industrial Court3. A Conciliation Board was on ad hoc - body established by the Minister of Manpower on application by any one of the parties in dispute. There was no requirement for an agreement between the disputing parties to apply for the establishment of a Conciliation Board. Either party could approach the Minister for its establishment. This application could be made on the workers side by one or more registered trade unions, one or more employees, or one or more registered trade unions. On the employer’s side, the application can be made by one or more registered employers’ organisations or, one or more employers.
- Full Text:
- Date Issued: 2018
An employer's ability to substitute a disciplinary hearing sanction
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
An evaluation of the national minimum wage dispensation
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
The effect of labour legislation in the promotion and integration of persons with disabilities in the labour market
- Authors: Cole, Elsabe Cynthia
- Date: 2013
- Subjects: People with disabilities -- Legal status, laws, etc. -- South Africa , People with disabilities -- Employment , Labour market
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9300 , http://hdl.handle.net/10948/d1014669
- Description: It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.
- Full Text:
- Date Issued: 2013
- Authors: Cole, Elsabe Cynthia
- Date: 2013
- Subjects: People with disabilities -- Legal status, laws, etc. -- South Africa , People with disabilities -- Employment , Labour market
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9300 , http://hdl.handle.net/10948/d1014669
- Description: It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.
- Full Text:
- Date Issued: 2013
Investigation into the implementation of the childrens act no 38 of 2005 in mainstream schools in the Fort Beaufort education district
- Authors: Mankazana, Sobantu Vincent
- Date: 2012
- Subjects: South Africa -- Childrens Act 2005 , Children -- Law and legislation -- South Africa , Children -- Legal status laws etc -- South Africa -- Eastern Cape , Mainstreaming in education -- South Africa -- Eastern Cape , Children -- Human rights
- Language: English
- Type: Thesis , Masters , MA (Human Rights)
- Identifier: vital:11102 , http://hdl.handle.net/10353/502 , South Africa -- Childrens Act 2005 , Children -- Law and legislation -- South Africa , Children -- Legal status laws etc -- South Africa -- Eastern Cape , Mainstreaming in education -- South Africa -- Eastern Cape , Children -- Human rights
- Description: In this study the focus is on the implementation of the Children’s Act in mainstream schools. The Children’s Act mandates that all children who are in need of care both in school and out of school should be taken care of and be protected. However, they are often not afforded the full opportunity to enjoy the benefits of this Act. This is due to various factors that hinder the process of its implementation in mainstream schools. The main emphasis of this study is on the factors that hinder the implementation of the Children’s Act. The aim of the Children’s Act is to look after and provide services and support to children in need of care and protection. In order to provide such services and support to children, one needs to first identify such learners in need of care and their needs. Having done this, the support needed can be assessed and provided. This process is not easily achieved in mainstream schools. This study seeks to determine the factors that discourage the implementation process of the Children’s Act in mainstream schools. Data collection for this study included face to face interviews with teachers who are principals of schools and Life Orientation teachers, a social workers and school nurse. The data was used to analyze and interpret the challenges that hinder the implementation of the Children’s Act in mainstream schools. Among others, the study found that there is a lack of collaboration among stakeholders and coordination of service delivery. Poor parental involvement and commitment to parent involvement programmes was also evident. However, to a limited degree, there is interaction between the schools and relevant government departments. The study recommends that multidisciplinary teams should be formed whereby scarce resources can be shared. Various professionals should have the opportunity to come together toshare ideas and information. In order to encourage identification of learners in need of care, it is recommended that, the peer groups or peer educators be established and awareness campaign be conducted in schools. The study also recommends that developmental assessment programmes be conducted. Developmental assessment programmes will help gather information directly from learners or from an appropriate adult in the child’s life. They provide frameworks which can be used as guides for eliciting and analysing information.
- Full Text:
- Date Issued: 2012
- Authors: Mankazana, Sobantu Vincent
- Date: 2012
- Subjects: South Africa -- Childrens Act 2005 , Children -- Law and legislation -- South Africa , Children -- Legal status laws etc -- South Africa -- Eastern Cape , Mainstreaming in education -- South Africa -- Eastern Cape , Children -- Human rights
- Language: English
- Type: Thesis , Masters , MA (Human Rights)
- Identifier: vital:11102 , http://hdl.handle.net/10353/502 , South Africa -- Childrens Act 2005 , Children -- Law and legislation -- South Africa , Children -- Legal status laws etc -- South Africa -- Eastern Cape , Mainstreaming in education -- South Africa -- Eastern Cape , Children -- Human rights
- Description: In this study the focus is on the implementation of the Children’s Act in mainstream schools. The Children’s Act mandates that all children who are in need of care both in school and out of school should be taken care of and be protected. However, they are often not afforded the full opportunity to enjoy the benefits of this Act. This is due to various factors that hinder the process of its implementation in mainstream schools. The main emphasis of this study is on the factors that hinder the implementation of the Children’s Act. The aim of the Children’s Act is to look after and provide services and support to children in need of care and protection. In order to provide such services and support to children, one needs to first identify such learners in need of care and their needs. Having done this, the support needed can be assessed and provided. This process is not easily achieved in mainstream schools. This study seeks to determine the factors that discourage the implementation process of the Children’s Act in mainstream schools. Data collection for this study included face to face interviews with teachers who are principals of schools and Life Orientation teachers, a social workers and school nurse. The data was used to analyze and interpret the challenges that hinder the implementation of the Children’s Act in mainstream schools. Among others, the study found that there is a lack of collaboration among stakeholders and coordination of service delivery. Poor parental involvement and commitment to parent involvement programmes was also evident. However, to a limited degree, there is interaction between the schools and relevant government departments. The study recommends that multidisciplinary teams should be formed whereby scarce resources can be shared. Various professionals should have the opportunity to come together toshare ideas and information. In order to encourage identification of learners in need of care, it is recommended that, the peer groups or peer educators be established and awareness campaign be conducted in schools. The study also recommends that developmental assessment programmes be conducted. Developmental assessment programmes will help gather information directly from learners or from an appropriate adult in the child’s life. They provide frameworks which can be used as guides for eliciting and analysing information.
- Full Text:
- Date Issued: 2012
Automatic unfair dismissal with reference to section 187(1)(c) of the Labour Relations Act
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
The legal consequences of alcohol and drugs in the workplace
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
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
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
Re(viewing) the constitutional court's decision in Sidumo v Rustenburg Platinum Ltd
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009