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Evaluating the exclusion of certain categories of workers from the coverage of the unemployment insurance act 63 of 2001 and the consequences thereof

  • Authors: Ncamane, Ntando
  • Date: 2020
  • Subjects: Social security
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/18347 , vital:42254
  • Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
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An investigation of the extent, effects and impact of Gender-based Violence in Duncan Village, East London

  • Authors: Peter, Noma-Afrika
  • Date: 2019
  • Subjects: Violence -- Sex differences Human rights
  • Language: English
  • Type: Thesis , Masters , M.Phil (Human rights)
  • Identifier: http://hdl.handle.net/10353/16851 , vital:40779
  • Description: This research seeks to investigate GBV against women in Duncan Village in the East London area to find out the extent of the prevalence, its effect, and remedial solutions. The study adopted a qualitative method. The data was collected through semi-structured one-to one interviews from 16 participants using systematic random sampling. The findings revealed that GBV is prevalent in Duncan Village. Most of the women residing in Duncan Village are dependent on child support grant and raise their children alone without the support of their biological fathers. The study further revealed that GBV against women often happens during day time and the victims are either married or single women. One of the contributing factors of GBV is unemployment. Therefore, this study recommends that awareness of GBV should be made continuously in communities by the government and stakeholders. In addition, the Commission for Gender Equality and NGOs that deal with GBV should be visible in all wards so that their services are known and utilised. The Department of Women Affairs should be the main driver in ensuring that women from previously disadvantaged communities are economically empowered, for example, by initiating income generating projects. However, they too should first be capacitated on business and financial management skills.
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Uninformed medical intervention as a violation of the rights to dignity, bodily integrity and privacy in South Africa

  • Authors: Silas, Patience Oluchi
  • Date: 2019
  • Subjects: Medical personnel and patient Human rights
  • Language: English
  • Type: Thesis , Masters , LAW
  • Identifier: http://hdl.handle.net/10353/16862 , vital:40780
  • Description: South African society has changed from one that favoured medical paternalism to one that demands respect for patient autonomy. Some legislative provisions currently require respect for human rights in the sphere of medical treatment. These laws vest patients with the right to informed consent thereby conferring them with the rights to decide what should be done to their bodies in terms of healthcare. Irrespective of the laws emphasising the need to respect, protect and promote the doctrine of informed consent in South Africa, so many health practitioners still engage in uninformed healthcare practices. This study, therefore, examines the doctrine of informed consent in relation to the fundamental rights to bodily integrity, dignity and privacy to ascertain the legal implications of the failure to obtain informed consent for healthcare services. It is desktop research undertaken from the constitutional, legislative, common law and ethical perspective of informed consent. Its findings are based on both primary and secondary legal sources. It established that informed consent is a fundamental right in South Africa; rendering any healthcare service without obtaining the informed consent of a patient does not only breach the fundamental and ethical principle of autonomy, but also grossly violates their fundamental rights to dignity, bodily integrity and privacy. The study clears the age-long differing views as to whether failure to obtain informed consent before medical interventions amounts to an assault, negligence or the violation of some specific fundamental rights. It reveals that the major reason why health practitioners administer uninformed medical treatment in contemporary health practice is insufficient awareness of the legal requirements of the doctrine of informed consent. This is coupled with the fact that they believe the doctrine is alien to the African psyche and the process of obtaining informed consent is time-consuming. It thus recommends that health practitioners should have a positive attitude towards the doctrine because having been entrenched in the Constitution, codified in various national laws and upheld by Courts, every legal stipulation regarding the doctrine is binding on them. It also suggests that health practitioners should be abreast with the laws governing informed consent and strictly comply with their substantive and procedural stipulations. This would protect the fundamental rights of the patient and avert legal actions.
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A critical examination of the regulation of fixed term employment services under South African Labour Laws

  • Authors: Faku, Xolisa
  • Date: 2018-12
  • Subjects: Labor laws and legislation , Labor contract , Industrial relations
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/23034 , vital:55101
  • Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law. , Thesis (MA) -- Faculty of Law, 2018
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A critical examination of the regulation of fixed term employment services under South African Labour Laws

  • Authors: Faku, Xolisa
  • Date: 2018
  • Subjects: Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/17316 , vital:40937
  • Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
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A review of five international forensic reports : fingerprint evidence lessons for South African lawyers

  • Authors: Chiwara, Mercy
  • Date: 2018
  • Subjects: Fingerprints Fingerprints -- Identification Forensic sciences
  • Language: English
  • Type: Thesis , Masters , Law
  • Identifier: http://hdl.handle.net/10353/10927 , vital:35964
  • Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
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A review of five international forensic reports : fingerprint evidence lessons for South African lawyers

  • Authors: Chiwara, Mercy
  • Date: 2018
  • Subjects: Fingerprints Criminal investigation Forensic sciences
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/10918 , vital:35963
  • Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
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Assessment of the Tyhume river health status using macroinvertebrates as indicators

  • Authors: Fasi, Nokonwaba Nellineth
  • Date: 2018
  • Subjects: Invertebrates -- South Africa -- Eastern Cape Rivers -- South Africa -- Eastern Cape
  • Language: English
  • Type: Thesis , Masters , Zoology
  • Identifier: http://hdl.handle.net/10353/10861 , vital:35879
  • Description: Ten sampling sites were selected along the Tyhume River corresponding to the upper, mid and lower reaches of the River. In total 48 families were collected during the study. The study observed different types of macroinvertebrate taxa; very low tolerant to pollution (e.g Heptageniidae; Notonemouridae; Perlidae), moderately pollution-tolerant (e.g. Caenidae; Chlorolestidae; Tricorythidae) and very tolerant of polluted conditions (e.g. Chironomidae; Muscidae; Oligochaetae). Both univariate and multivariate analyses were done using PRIMER V6. Above Confluence (ABCON, Site 10) had the highest number (37) of species while Mtloko (MTLOK, Site 2) had the lowest number (24) (Chi-square = 0.87; p < 0.05). The highest number of individuals (4023) was recorded at Macfairlane (MACFA, Site 5) while the lowest number (1240) at Honeydale (HONEY, Site 8) (Chi-square = 0.00; p < 0.05). Margalef’s index indicated Above Confluence (ABCON, Site 10; 4.762), had the highest values of species richness while Mtloko (MTLOK, Site 2; 3.227) had the lowest values (Chi-square = 1; p < 0.05). Pielou's evenness index indicated that Gqumashe (GQUMA, Site 7) had the highest values (0.7137), while Macfairlane (MACFA; Site 5) had the lowest (0.5109) (chi-square = 1; p < 0.05). Shannon-Wiener diversity indices, the highest diversity index values (2.573) of macroinvertebrates was recorded at Honeydale (HONEY, Site 8), and the lowest (1.684) at Macfairlane (MACFA, Site 5) (chi-square = 1; p < 0.05). The ASPT Scores did not differ significantly (P > 0.05) across sites. No significant difference was observed in the ASPT scores across the 10 sites (F = 0.75; df = 9.60; P > 0.05). Site 4 had the highest mean ASPT Scores with mean of 7.6), whereas the lowest. Three biotopes types, namely: stone, vegetation, gravel-sand-mud, stone and vegetation being the dominant biotopes at the 10 sites. The cluster analyses showed that macroinvertebrates were dependent on biotope preference while stone biotope showing greater macroinvertebrate densities. Euclidean distance of site classification with respect to physico-chemical parameters showed very low stress value (0.01) implying that physico-chemical parameters influenced species distribution within each sampling site. The results also showed that good health conditions existed at the most upstream sites than the lower reaches of the river, thus, indicating impacts of pollution within the river.
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Import licensing regulation within the WTO: a case study of the dispute between Zimbabwe and South Africa over the Control of Goods (Open General Import Licence) Notice of 2016 (Statutory Instrument 64)

  • Authors: Kamunjoma, Charles https://orcid.org/0000-0002-1930-4341
  • Date: 2018
  • Subjects: Import quotas , Customs unions , Africa, Southern -- Economic integration
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/27854 , vital:70097
  • Description: Over the years, Zimbabwe has arbitrarily enforced trade restrictive measures including mandatory inspections on certain products, duty increases, surtaxes and import permits on basic products such as cooking oil. The measures have been allegedly targeting goods from South Africa. Amongst the most recent restrictive measures imposed by Zimbabwe is SI 64 of 2016 that now operates as SI 122 of 2017. In response to SI 64, for the first time, South Africa threatened retaliation. As a result, there is visible trade tension between Zimbabwe and South Africa. With the absence of an effective dispute settlement mechanism within SADC, or most African Regional Economic Communities RECs for that matter, a WTO approach to the issue will provide valuable insights on how else South Africa (and other African countries) can deal with cross-border trade problems such as the ones posed by SI 64. , Thesis (LLM) -- Faculty of Law, 2018
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The regulation of anti-dumping : a critical assessment with a focus on South Africa

  • Authors: Chikomo, Unico
  • Date: 2018
  • Subjects: Antidumping duties
  • Language: English
  • Type: Thesis , Masters , Law
  • Identifier: http://hdl.handle.net/10353/10896 , vital:35961
  • Description: Economic globalisation entails the integration of national economies into one economy centred upon free International trade and the unrestricted flow of foreign direct investment.1 It has been argued by economists, politicians, business people, lawyers and many others that economic globalisation results in healthy competition amongst producers of goods and technologies around the world. This in turn results in market efficiency, cheaper, high quality goods and the increased spread of technology and wealth amongst countries. International trade aims to increase trade liberalisation, which has been seen to create higher standards of living for people as a result of greater competition amongst producers in different parts of the international globe. However whilst in support of trade liberalisation trade lawyers have warned that International trade must be fair. Unfair trade can take the form of dumping, price fixing, and certain methods of subsidisation. Unfair trade usually has disastrous effects on the domestic markets of importing countries which can result in injury to domestic industry and the national economy. Such injury can be in the form low sales, losses, company closures and retrenchments. As a result of such domestic injury, World Trade Organisation (WTO) law condemns dumping if it causes injury to the domestic industry of the importing country2 and allows importing countries to impose certain measures aimed at protecting themselves against such injury; these measures are called anti-dumping measures. However, WTO member states need to ensure that their anti-dumping frameworks are consistent with WTO norms. The principal objective of this study is to critically assess the existing regulatory framework of anti-dumping in South Africa with a view to identifying shortcomings that may result in the framework being inconsistent with WTO anti-dumping rules. In pursuing that objective, the study explores the norms and standards of the existing WTO regulatory framework on anti-dumping and ascertains the obligations of South Africa with regard to the imposition of anti-dumping measures.
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The reliability of firearm identification in South Africa : a comparative perspective

  • Authors: Mutsavi, Tanyarara
  • Date: 2018
  • Subjects: Forensic sciences Firearms -- Identification
  • Language: English
  • Type: Thesis , Masters , Law
  • Identifier: http://hdl.handle.net/10353/10850 , vital:35860
  • Description: Crime has become a well-known and worrying fact of life in South Africa. It constrains the ability of citizens to participate actively and meaningfully in all spheres of social and economic life. In many cases where a crime is committed, a firearm is involved. In order to fight gun crime there is a need for the perpetrators to be prosecuted. For prosecution to take place, there must be evidence to link the suspects to the committed crime. This is when firearm identification as a form of expert scientific evidence comes into play. This type of evidence links the bullets and cartridges recovered from the crime scene to the suspect.s firearms through the process of matching which is done by using a comparison microscope. Expert scientific evidence like firearm identification evidence, needs to be scientifically reliable because unreliable evidence may lead to the conviction of the innocent and exoneration of the guilty. Case law, authoritative reports and other literature have shown that firearm identification is not scientific and therefore it is not reliable. This is a disturbing position, considering the fact that this type of evidence is still being used in courts and no alternative has been found thus far to replace it. This study therefore proposes some reforms and recommendations which have been registered in authoritative reports which assist South Africa in dealing with firearm identification evidence. To achieve reliability, some writers have suggested that South Africa should adopt the US approach with regard to admissibility where judges play a .gate keeping. role by making sure that expert evidence is reliable before it enters the court. However, this study argues that scientific reliability, in South Africa, should not be a criterion for admissibility, but should rather be a central factor in deciding what weight should be attached to the expert evidence given in a particular case. The reason for this is that, in South Africa, the jury system is not used and therefore the judge does not have to exercise a .gate keeping. role, as he or she will be the final arbiter as to whether the evidence is reliable. In this context, reliability is considered during cross-examination. Cross-examination by the defence is crucial and this study proposes some possible cross-examination questions that can be helpful in testing the reliability of firearm identification evidence.
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The right of access to information as a means to empower citizens to participate in democratic processes : a case study of Zwelitsha, King Williams Town

  • Authors: Ngcuka, Simtembile
  • Date: 2018
  • Subjects: Freedom of information Freedom of information -- South Africa
  • Language: English
  • Type: Thesis , Masters , (MPhil)Human Rights
  • Identifier: http://hdl.handle.net/10353/10839 , vital:35858
  • Description: The Republic of South Africa is embedded from a society that has been beleaguered. Apartheid laws were used to treat people unequally, based on race, gander, ethnic group, background, colour, belief, culture and language. These laws prohibited association of people from different races and groups. The education system was also used to instil inferiority to disadvantaged people. This system promoted a culture of secrecy and unresponsive government. The new Constitution of the Republic of South Africa was adopted in 1996. This Constitution promotes democracy and equality amongst citizens of this country. It was also adopted to bridge injustices of the past. Democracy is about allowing every citizen to participate in the processes which are meant for the development of the country. The new Constitution provided that every citizen is equal; this means every citizen must enjoy equal human Rights. This includes the Right to participate in democratic processes which are taking place. Studies show that the Right of Access to Information empowers people to participate in democratic processes. This study examines the exercise in section 32 of the Republic of South Africa Constitution (1996), by Zwelitsha community as means to empower people in participating in democratic processes taking place in their community. This Right is reinforced by Promotion of Access to Information Act No. 2 of 2000 (PAIA). The research reveals that the community of Zwelitsha is not exercising this Right which often leads to violation of other Rights. The exercise of the Right of Access to Information increases awareness and knowledge of other existing Rights, and how they can be realised and defended. The recommendations in the study underscore the need to promote the Right of Access to Information as a means to empower citizens to participate in the democratic processes in their community. This study will take the community a step closer to reaching equality. It will also educate the community of the need and importance of exercising the Right of Access to Information. It will assist the community to be able to protect other Rights. An informed community is an empowered community that can also hold the state to account.
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The scope of environmental protection under the legal framework of the World Trade Organisation : an evaluation of the issues and implications for developing countries

  • Authors: Umenze, Nnamdi Stanislaus
  • Date: 2018
  • Subjects: Environmental protection -- Developing countries Environmental law -- Developing countries
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/10802 , vital:35762
  • Description: Over the years, the extent to which the legal framework of the World Trade Organisation (WTO) makes provision for environmental protection has been a major issue within the organisation. While trade liberalisation and environmental protection are fundamental objectives of the WTO to be pursued in line with the sustainable development goals as enshrined in the Preamble of the Marrakesh Agreement, the organisation does not have a specific agreement on the environment. Moreover, efforts by the member states of the WTO to reform the environmental protection regime of the global trading system have achieved little. Nevertheless, under the current legal framework of the WTO, members are allowed, subject to a number of conditions, to adopt trade-related measures aimed at protecting the environment. Employing documentary research methodology, this study critically evaluates the relationship between trade and the environment, the provisions made for environmental protection in selected WTO agreements and the extent to which trade-related environmental protection measures are permissible under the legal framework of the WTO. It also evaluates the implications of unilateral and the Multilateral Environmental Agreements (MEA)-based environmental trade measures as well as the possibility of a clash of policy objectives between the WTO Agreements and the MEAs, given that some of the MEAs contain environmental trade measures prohibited by the WTO free trade rules. The findings made in this study suggest that states generally prefer to enforce unilateral environmental trade measures against foreign goods. This has allowed states, in some instances, to hide under the guise of environmental protection to pursue protectionist’s interests, eco-imperialism, etc., leading to the trade and environment-related disputes at the WTO. Moreover, the WTO is made up of member states that are at different levels of development and possess different environmental protection standards. Hence, there is concern from developing countries, on the one hand, that their economic interests are being frustrated by the stringent application of unilateral environmental trade measures in the developed countries, and, on the other hand, that the environmental burden of international trade is being shifted to the developing countries as the developed countries tighten their environmental standards. The study concludes that the environmental protection regime of the WTO as it stands is not adequate to guarantee the balance of trade and environmental protection objectives as well as the balance of interests between the developed and developing countries. The study, therefore, recommends reform in the environmental protection regime of the WTO to ensure that the environmental protection measures are adequately provided for and that balance of interests between the developed and developing countries is maintained in order to ensure sustainable global trade. It further recommends that a mutually reinforcing relationship should be established between the WTO and the MEAs to avoid a possible clash of policy objectives.
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The use of alternative dispute resolution mechanisms in labour relations in the workplace in South Africa

  • Authors: Rwodzi, Night Tafadzwa
  • Date: 2018
  • Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa Industrial relations -- South Africa
  • Language: English
  • Type: Thesis , Masters , Law
  • Identifier: http://hdl.handle.net/10353/10907 , vital:35962
  • Description: Disputes are part and parcel of human nature and always manifest everywhereincluding the employment arena. It is this inevitability of disputes that warrantsmeasures to be in place so as to effectively and without delay, resolve them in order to realise industrial peace. This study is prompted by the way industrial disputes have been handled in the past and the contemporary era. South African legal system provides Alternative Dispute Resolution (ADR) mechanisms to the use of adjudication by the ordinary courts in resolving workplace disputes. However, a set of methods made up of conciliation, mediation and arbitration have not been effective in resolving labour disputes owing to a variety of factors. Failure to provide a speedy resolution of disputes, large number of referrals to the Commissioner for Conciliation, Mediation and Arbitration (CCMA) and a large number of review applications lodged at the Labour Courts are some of the contributory factors that delay matters in bringing to finality. It is therefore the aim of this study, to proffer plausible recommendations that intends to cure and provide a silver bullet to the lacuna which exists in the current labour dispute system. To achieve the above stipulated aim, a general background of the study, accompanied by the chronicles of dispute resolution statutes and mechanisms is deliberated. Thereafter, South African compliance with International Labour Organisation (ILO) Conventions is discussed to assess the efficacy of labour dispute mechanisms. A critical analyses of the effectiveness of ADR within the scope of Labour Relations Act (LRA) 66 of 1995 will then follow. Although there are some limitations to this study, it should be noted that relevant legislation passed by parliament, cases, together with international and regional conventions ratified by the government, scholarly articles, journals and books are used to strengthen arguments and provide guidance in achieving the aims and objectives of the study.
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Towards unmasking the true employee in South Africa’s contemporary work environment: the perennial problem of labour law

  • Authors: Maloka, Tumo Charles
  • Date: 2018
  • Subjects: Labor laws and legislation
  • Language: English
  • Type: Thesis , Doctoral , LLD
  • Identifier: http://hdl.handle.net/10353/16874 , vital:40781
  • Description: The enormously intricate task of unmasking the true employee in contemporary work environment reveals the dilemmas and complexities embedded in the beguilingly simple but intractable question: who is an employee? The hallmarks of a true employee are shaded in modern work environment given that the actual differences between the categories of “employee” and “independent contractor” are diminishing. The conception of self-employment that links being self-employed inextricably with entrepreneurship, ownership, and autonomy has more to do with ideology than reality. In addressing the opacities of form engendered by “Work on demand via app” and the “Uberisation of work”, the study also attends to the significant and neglected component of labour law’s traditional dilemma. Put simply, how the law identifies an “employer” as a counterparty with an “employee”. Certain features of modern business organisation such as vertical disintegration of production, and their link to the rise of precarious employment underscore the extent to which the concept of employer plays a central role in defining the contours of labour protection. The problems of precarity are deep-seated, long-term and even escalating, especially in compelled and dependent self-employment. Re-appraisal South Africa’s black box of precarious self-employment through the lens of Canadian dependent contractor jurisprudence points to key limitations that should be addressed for a more robust and effective vision of labour regulation. If the definition of “employee” in section 213 of the Labour Relations Act 66 of 1995 is amended to redefine an “employee” to include a “dependent contractor”, this will represent a leap forward in tackling the interlinked problems of disguised employment and precarious self-employment. This statutory redefinition of the employee serves two purposes. First, the dependent contractor category solves the broader challenge for labour regulation of how to extend protection to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of i ii economic dependence, resembling that of an employee. In essence, the intermediate category recognises that, as a matter of fairness persons in economic positions that are closely analogous should be given the same legislative treatment. The second purpose, and one no less important, is to fill in the missing piece of the puzzle in the judicially endorsed three-tiered SITA test for identifying employment relationship. If the dependent contractor category is adopted, the lacuna in the threefold SITA test that has so far escaped scholarly, judicial and legislative will be resolved. In this regard, the study contributes to a line of legal scholarship that has tracked the regulatory trajectory for reforming South Africa’s labour laws. It is hoped that this thesis will provoke a sustained, and more curious engagement with the complexities and capacities of labour regulation
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An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa

  • Authors: Wazvaremhaka, Tinashe
  • Date: 2017
  • Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/9045 , vital:34221
  • Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
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Blessing or curse? : an evaluation of the African Growth Opportunity Act

  • Authors: Matenga, Lloyd
  • Date: 2017
  • Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/8825 , vital:33667
  • Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
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Decolonising the regulation of the right to strike in South Africa : an analysis

  • Authors: Tsanyau, Dauglous
  • Date: 2017
  • Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/8813 , vital:33615
  • Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
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The broadcasting of criminal trials : upholding the freedom of expression or undermining the right to fair trial?

  • Authors: Nunu, Sukoluhle Belinda
  • Date: 2017
  • Subjects: Free press and fair trial -- South Africa Freedom of expression -- South Africa Freedom of the press -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/2832 , vital:28102
  • Description: This study investigated the tension between the right to freedom of expression and the right to a fair trial in the context of the public broadcasting of criminal trials. The aim of the study was to determine whether the right of the media to broadcast criminal trials can be reconciled with the right of an accused person to a fair trial. To accomplish the above aim, the research undertook a review of the case law relating to televised criminal trials in order to determine how the courts have addressed the fair trial-free expression conflict. The study concluded that the ‘balancing exercise’ employed by the courts does not seem to have addressed this tension. Given that televised criminal trials are prone to sensationalism and the danger of fabrication of evidence, the study concludes that the broadcasting of criminal trials undermines the right to a fair trial. The study makes recommendations that are designed to ensure a proper balance between the freedom of expression as exercised by the media through the broadcasting of criminal trials on the one hand and the right of accused persons to a fair trial on the other.
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The WTO agreement on technical barriers to trade : a critical appraisal of its implementation within the Southern African Development Community

  • Authors: Chimeri, Vongai
  • Date: 2017
  • Subjects: Tariff -- Law and legislation Non-tariff trade barriers -- Law and legislation Foreign trade regulation
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/2855 , vital:28108
  • Description: The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.
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