Labour dispute resolution in South Africa and Malawi: a comparative study
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
- Authors: Banda, Lisa Malopa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Malawi Labor laws and legislation -- South Africa Labor laws and legislation -- Malawi Arbitration, Industrial -- South Africa Arbitration, Industrial -- Malawi
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23891 , vital:30639
- Description: The aim of this treatise with the title Labour dispute resolution in South Africa and Malawi: A comparative study is to compare alternative dispute resolution between these two countries. It, furthermore, aims at drawing best practice to feed into each other. Another objective of this treatise is to learn by comparing and providing insight into the two countries’ alternative dispute resolution systems. This treatise comprises five chapters, each dealing with different aspects of alternative dispute resolution and an inter-country comparison. Chapter 1 introduces the concept of alternative dispute resolution and explains different types of methodologies in South Africa and Malawi in this regard. It also describes the different external alternative dispute resolution systems. In any conflicting situation, there is no guarantee that disputes will be resolved successfully, hence, one needs to apply different methodologies to try to resolve disputes, such as an alternative dispute resolution. Chapter 2 examines the Alternative Dispute Resolution System of South Africa and consists of three parts. Part 1 focuses on the historical legislative framework, Part 2 examines labour dispute resolution, as provided for in the Labour Relations Act of 1995 and Part 3 analyses the advantages and disadvantages of alternative dispute resolution systems in South Africa. Alternative dispute resolution has become popular and prominent across the globe as it ensures privacy and emphasises a cooperative and constructive way forward, which carries with it the possibility of improving employment relations in the long term. Chapter 3 provides an outline of Malawi’s relevant dispute resolution legal framework, regulated methodologies and system. Chapter 4 concentrates on evaluating and comparing alternative dispute resolution systems in South Africa with that of Malawi and later evaluates efficiencies, the effectiveness and challenges of alternative dispute resolution, which arise from the earlier comparison, with the aim of determining whether or not there is a need for reform of each country’s alternative dispute resolution system. The delivery of alternative dispute resolution systems can take place in a number of different settings, such as an employment tribunal, under the auspice of the Ministry of Labour, dispute resolution boards or a private dispute resolution. However, for the purpose of this study, the main mechanisms that will be analysed are arbitration, conciliation and mediation. Conclusions and recommendations are discussed in Chapter 5, which briefly summarises this study and synthesises the analysis of the South African and Malawian alternative dispute resolution system. Recommendations for legislation, methodologies and systems are also made.
- Full Text:
- Date Issued: 2018
Labour rights of fishers in Namibia
- Hamukuaya, Nghililewanga Hashali
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
Employee pension and provident fund rights
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
- Authors: Richard, Makhado Fhatuwani
- Date: 2018
- Subjects: Pension funds -- Law and legislation -- South Africa , Pension trusts -- South Africa Pensions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/35156 , vital:33642
- Description: Ideally, every employee is required to retire at some stage in life. Some retire at a relatively early age, whilst others work for as long as is possible. The generally accepted retirement ages are 55, 60 or 65, but vary from company to company as stipulated in the specific company's provident or pension fund rules or policy. Once retired, an individual would rely on social insurance as a source of income in the form of pension or a provident fund. Social insurance, in this regard, refers to the earned benefits of employees and is often linked to formal employment. South Africa, as a middle-income developing country, has incorporated such elements into its social security system. The main aim of a pension or provident fund is to provide benefits for its members when they retire from employment, retrenched, unable to work due to illness and for family in the case a member dies while still working. These forms of social security are key to people’s survival and are referred to as safety nets. benefits. Participation on a voluntary basis by the self-employed is allowed but the take-up has been low Employees’ pension and provident rights under a pension or provident scheme do not arise only under the trusts of the scheme but also as contractual terms of the employment relationship between the employer and its employees. This often takes effect on the date of taking up employment, or on entering into an agreement with the employer. Employment law covers all rights and obligations within the employee employer relationship and covers a range of legal issues such as discrimination, wrongful termination, wages and taxation. Many of these issues are governed by the applicable law. Although the South African retirement fund system is in many respects financially sound and well regulated, several individuals still reach their retirement age with inadequate savings. This occurs for several reasons. For many people, during their working life, the build-up of savings is disrupted, or the costs associated with retirement fund provisioning are relatively high. This problem is not only grave for some workers in the formal sector, but largely for those in the rapidly increasing informal sector. Majority of people still lack effective access to an affordable retirement funding vehicle, for the most part, are completely excluded from social protection schemes, social insurance schemes. The South African retirement fund industry has been heavily influenced by a racially divided past and the parallel existence of developed and emerging components of the economy. In the past, racially discriminatory exclusion from the pension fund or provident fund membership was prevalent. In many cases it was indirect discrimination based on job categorisation, such as the distinction between weekly paid and monthly paid staff. Where the staff complement was racially stratified, people were excluded from membership on the grounds of race. Discrimination in the workplace can deny individuals opportunities and thereby deprive society of what those individuals can and could contribute. This has unfortunately been the case in South Africa’s history, the administration of pension and provident funds being one of many examples.
- Full Text:
- Date Issued: 2018
Ratifying the ILO convention no. 102 (social security minimum standards convention, 1952) by South Africa
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
The effective use of legal protection to combat stigma and discrimination related to HIV and AIDS in a workplace: a case study in kwa Zulu Natal
- Authors: Ndobeni, Zoliswa Nomawesile
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation , Medical policy -- legislation & jurisprudence Public health -- legislation & jurisprudence HIV-positive persons -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32804 , vital:32365
- Description: Stigma and discrimination continue to be the leading cause of everyday cases of new HIV/AIDS infections in spite of the current legal and medical interventions available. The purpose of the study is to explore the effective use of legal protection in combating stigma and discrimination related to HIV/AIDS in the workplace. When it comes to fighting discrimination and stigma against people living with HIV/AIDS, it is still a challenge as these aspects prevent people from coming forward for testing and for prevention as well as treatment service. The rationale for conducting the study is to examine the relationship of the human rights as per the Constitution of South Africa and the spread and impact of HIV/AIDS on individuals in the workplace. The study is of significance to conduct as the research will further provide knowledge and awareness to both the employer and employee regarding the legal framework pertaining to HIV/AIDS and perhaps unintentional consequences of the legal framework to both the employer and employee concerning productivity and growth. Various legal frameworks were determined to address HIV pandemic in South Africa which constitutes one of the utmost challenges facing the nation as well as benchmarking international law. The structure and functioning of the workplace is a key possibility to address developmental inequities in South Africa. This includes the development of healthcare centres in the workplace. HIV testing involves a great deal of risks and consequences that may not be apparent to the patient. Hence, informed consent is required. Policies and guidelines have been put in place to protect employees. HIV clinicians now argue that HIV testing should be presented as a routine procedure, to remove social barriers and stigma. The present study recommends various programmes that may assist in minimizing stigma and discrimination of people living with HIV. This stigma prevent persons from testing for HIV status. The study also seeks to evaluate and review current policies concerning HIV/AIDS.
- Full Text:
- Date Issued: 2018
- Authors: Ndobeni, Zoliswa Nomawesile
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation , Medical policy -- legislation & jurisprudence Public health -- legislation & jurisprudence HIV-positive persons -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32804 , vital:32365
- Description: Stigma and discrimination continue to be the leading cause of everyday cases of new HIV/AIDS infections in spite of the current legal and medical interventions available. The purpose of the study is to explore the effective use of legal protection in combating stigma and discrimination related to HIV/AIDS in the workplace. When it comes to fighting discrimination and stigma against people living with HIV/AIDS, it is still a challenge as these aspects prevent people from coming forward for testing and for prevention as well as treatment service. The rationale for conducting the study is to examine the relationship of the human rights as per the Constitution of South Africa and the spread and impact of HIV/AIDS on individuals in the workplace. The study is of significance to conduct as the research will further provide knowledge and awareness to both the employer and employee regarding the legal framework pertaining to HIV/AIDS and perhaps unintentional consequences of the legal framework to both the employer and employee concerning productivity and growth. Various legal frameworks were determined to address HIV pandemic in South Africa which constitutes one of the utmost challenges facing the nation as well as benchmarking international law. The structure and functioning of the workplace is a key possibility to address developmental inequities in South Africa. This includes the development of healthcare centres in the workplace. HIV testing involves a great deal of risks and consequences that may not be apparent to the patient. Hence, informed consent is required. Policies and guidelines have been put in place to protect employees. HIV clinicians now argue that HIV testing should be presented as a routine procedure, to remove social barriers and stigma. The present study recommends various programmes that may assist in minimizing stigma and discrimination of people living with HIV. This stigma prevent persons from testing for HIV status. The study also seeks to evaluate and review current policies concerning HIV/AIDS.
- Full Text:
- Date Issued: 2018
An overview of absence without leave, sick absence and absconding in the local government sector
- Authors: Kalawe, Thozama Mavis
- Date: 2018
- Subjects: Absenteeism (Labor) , Local government -- South Africa Civil service -- Labor productivity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30430 , vital:30943
- Description: The treatise will investigate, examine and determine how the three types of absenteeism affects the local government sector, the impact absenteeism has on service delivery. The study will examine how the employers and employees are protected by legislation when confronted with absenteeism. The three types of absenteeism, namely absence without leave, desertion and abuse of sick leave can be considered as misconduct which may result in termination of contract of employment. The treatise will unpack these three types of absenteeism in relation to the provisions applicable in South African legislation, policies and collective agreements of the local government. A comparison of the local government policies with public, and private sector will be considered. The case study of local government will be provided wherein the basic services that are provided by local government will be discussed to give a better understanding of how these three types of absenteeism impact on the delivery of such services. Recommendation will be provided regarding research findings and conclusion drawn from literature review.
- Full Text:
- Date Issued: 2018
- Authors: Kalawe, Thozama Mavis
- Date: 2018
- Subjects: Absenteeism (Labor) , Local government -- South Africa Civil service -- Labor productivity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30430 , vital:30943
- Description: The treatise will investigate, examine and determine how the three types of absenteeism affects the local government sector, the impact absenteeism has on service delivery. The study will examine how the employers and employees are protected by legislation when confronted with absenteeism. The three types of absenteeism, namely absence without leave, desertion and abuse of sick leave can be considered as misconduct which may result in termination of contract of employment. The treatise will unpack these three types of absenteeism in relation to the provisions applicable in South African legislation, policies and collective agreements of the local government. A comparison of the local government policies with public, and private sector will be considered. The case study of local government will be provided wherein the basic services that are provided by local government will be discussed to give a better understanding of how these three types of absenteeism impact on the delivery of such services. Recommendation will be provided regarding research findings and conclusion drawn from literature review.
- Full Text:
- Date Issued: 2018
Substantive fairness in dismissals based on operational requirements
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- 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/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- 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/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
Substantive fairness in the context of dismissal for team misconduct
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
The concept of equal pay for equal work
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
- Authors: Dorfling, Jennifer Tracey
- Date: 2018
- Subjects: Equal pay for equal work -- South Africa , Labor laws and legislation -- South Africa Pay equity -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22005 , vital:29811
- Description: The elimination of pay discrimination and the introduction of equal remuneration has been advocated internationally since the early 1950s by conventions set out by the International Labour Organisation (ILO). The aim of the International Labour Organisation is to improve working conditions universally, remove discrimination based on gender and establish fair rates of remuneration. In South Africa, regulations were promulgated on 1 August 2014 based on the conventions set out in the ILO, in the newly-amended Employment Equity Act. The amendment to section 6(4) of the Employment Equity Act states that a difference in the conditions between employees employed by the same employer, performing the same or substantially the same work or work of equal value based on any one or more grounds of unfair discrimination listed in subsection (6)1, is unfair discrimination. The introduction of this amendment, therefore, brought about an improved legal framework for employees to bring forth unequal remuneration claims. The doctrine of equal pay for equal work is nuanced owing to the lack of understanding, widespread forms of discrimination as well as interpretation of the law. This is experienced internationally and across many jurisdictions. The jurisdictions focused on in this study include the United States of America, the United Kingdom, India and Australia. The comparative study reviews the current equal pay for equal work law in these jurisdictions, and could prove to be useful guidelines to assist with the expansion of the doctrine within the South African legal context. Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others was the first case brought forth to the Commission for Conciliation, Mediation and Arbitration since the amendment to the Employment Equity Act. A comprehensive analysis of this case has been set out in the treatise. Finally, the treatise concludes with inadequacies in the current legal framework, recommendations to resolve these inadequacies, the future of equal pay for equal work and proposes practical key learnings for human resources practitioners.
- Full Text:
- Date Issued: 2018
Capital v Revenue: the income tax test of intention
- Authors: Haworth, Christi-Anne
- Date: 2018
- Subjects: Income tax -- Law and legislation -- New Zealand , Income tax -- Law and legislation -- South Africa Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- New Zealand Tax planning
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30028 , vital:30811
- Description: The purpose of this research was to identify and comment on various interpretive problems posed by using ‘intention’ as a legal test to classify a taxpayer’s taxable gross income. Using an integrative literature review method, the research provides a detailed discussion of the historical interpretation of this test, and identifies various interpretive problems arising from the inconsistent and differing interpretation of this test by the courts. Having identified that certain jurists and authors take guidance from criminal law in their interpretation of intention, an analysis of the approach in this area of law, as well as in the law of delict is made. The difference between motive and intention forms part of this discussion. The conclusion is drawn that intention as it is used in the criminal law is not an appropriate test to be applied in income tax. Having drawn this conclusion, and expanding on an identified jurisdiction a comparison is drawn between the approach by courts in New Zealand and courts in South Africa regarding the purpose with which a taxpayer acquires an asset or undertakes a transaction. The difference between purpose and intention is expanded upon and explained as it is seen by the courts in this jurisdiction. Throughout the body of the treatise certain recommendations are made, and parallels are drawn between the South African approach and the approach in New Zealand.
- Full Text:
- Date Issued: 2018
- Authors: Haworth, Christi-Anne
- Date: 2018
- Subjects: Income tax -- Law and legislation -- New Zealand , Income tax -- Law and legislation -- South Africa Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- New Zealand Tax planning
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30028 , vital:30811
- Description: The purpose of this research was to identify and comment on various interpretive problems posed by using ‘intention’ as a legal test to classify a taxpayer’s taxable gross income. Using an integrative literature review method, the research provides a detailed discussion of the historical interpretation of this test, and identifies various interpretive problems arising from the inconsistent and differing interpretation of this test by the courts. Having identified that certain jurists and authors take guidance from criminal law in their interpretation of intention, an analysis of the approach in this area of law, as well as in the law of delict is made. The difference between motive and intention forms part of this discussion. The conclusion is drawn that intention as it is used in the criminal law is not an appropriate test to be applied in income tax. Having drawn this conclusion, and expanding on an identified jurisdiction a comparison is drawn between the approach by courts in New Zealand and courts in South Africa regarding the purpose with which a taxpayer acquires an asset or undertakes a transaction. The difference between purpose and intention is expanded upon and explained as it is seen by the courts in this jurisdiction. Throughout the body of the treatise certain recommendations are made, and parallels are drawn between the South African approach and the approach in New Zealand.
- Full Text:
- Date Issued: 2018
The non-restoration of land: scope and ambit of section 34 of the restitution of land rights act
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
- Authors: Christoffels, Eugene Miles
- Date: 2018
- Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23869 , vital:30636
- Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
- Full Text:
- Date Issued: 2018
Discrimination and dismissal based on age
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
- Authors: Hlohlolo, Sephiri
- Date: 2018
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30309 , vital:30929
- Description: The purpose of this treatise is to discuss discrimination and dismissal based on age in the workplace. When doing this, specific focus will be on the provisions of section 187(2)(b) of the Labour Relations Act and its fairness when it comes to normal or agreed retirement age for persons employed. Section 187(2)(b) sets out certain justifications on which an employer can rely when it comes to dismissals based on age. South Africa (SA) is a constitutional state and the Constitution is the supreme law. What this means is that any national legislation promulgated must not be in conflict with the Constitution. On the contrary, national legislation must enable the constitutional imperatives. Reference to the Constitution of SA will be made, more so, the equality and fairness provisions. In the process of doing so, a probe into whether section 187(2)(b) as a constitutional enabler, will pass the constitutional muster, will also be looked into. Not all discrimination is unfair when it comes to the SA Labour Law. Provision for fair discrimination has been provided for and as a result, the treatise will also look at the concept of unfair discrimination and how it has been tested by the Courts. A further discussion will outline what is meant by discrimination and dismissal based on age, and whether such a dismissal is in fact a dismissal, and whether within the requirements of the LRA, such a dismissal or termination of employment contract, is in fact, fair. The history of the development of the concept of discrimination in SA will be addressed, and so is a comparative study on foreign law. While foreign jurisprudence is cardinal, a focus on the current SA case law will be done in order to evaluate how discrimination and dismissal based on age are dealt with. Lastly, a critical analysis of sub section 187(2)(b) of the LRA in relation to subsection 187(2)(a) will be looked at, as well.
- Full Text:
- Date Issued: 2018
The unfair labour practice relating to suspension
- Authors: Moela, Matlose Phineas
- Date: 2018
- Subjects: Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23038 , vital:30398
- Description: This treatise considers unfair-labour- practice relating to suspensions in the workplace. Furthermore the treatise outlines the legal framework relating to suspensions in the workplace. As I explore this fundamental issues of the law, the fairness relating to suspension will be examined. Some recommendations are also made as to how departments and organisations must develop guidelines and policies which are legally sound to deal with suspension in the workplace. Employees often challenge the fairness of their suspension in the workplace. These challenges are based on a number of things, including failure to provide an employee to make representations, failure to comply with policies regulating suspensions in the workplace, suspension without pay, prolonged suspensions, etc. The treatise therefore also consider these challenges as well as the recourse available to employees. The treatise commences with the legal framework and principles contained in the Labour Relations Act, 66 of 1995 (hereinafter referred to as the LRA) applicable to suspensions. The treatise then considers other legislation and recent developments in both the public and private sector. The study concludes with remedies available to employees in instances where an unfair-labour-practice relating to suspension has been found to be committed by an employer during the suspension process.
- Full Text:
- Date Issued: 2018
- Authors: Moela, Matlose Phineas
- Date: 2018
- Subjects: Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/23038 , vital:30398
- Description: This treatise considers unfair-labour- practice relating to suspensions in the workplace. Furthermore the treatise outlines the legal framework relating to suspensions in the workplace. As I explore this fundamental issues of the law, the fairness relating to suspension will be examined. Some recommendations are also made as to how departments and organisations must develop guidelines and policies which are legally sound to deal with suspension in the workplace. Employees often challenge the fairness of their suspension in the workplace. These challenges are based on a number of things, including failure to provide an employee to make representations, failure to comply with policies regulating suspensions in the workplace, suspension without pay, prolonged suspensions, etc. The treatise therefore also consider these challenges as well as the recourse available to employees. The treatise commences with the legal framework and principles contained in the Labour Relations Act, 66 of 1995 (hereinafter referred to as the LRA) applicable to suspensions. The treatise then considers other legislation and recent developments in both the public and private sector. The study concludes with remedies available to employees in instances where an unfair-labour-practice relating to suspension has been found to be committed by an employer during the suspension process.
- Full Text:
- Date Issued: 2018
The return-to-work policy for injured and diseased workers
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
- Authors: Keti, Nosicelo
- Date: 2018
- Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/31064 , vital:31307
- Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
- Full Text:
- Date Issued: 2018
Unfair discrimination and affirmative action in the workplace
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
- Full Text:
- Date Issued: 2018
- Authors: Motona, Johannes
- Date: 2018
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/32300 , vital:32007
- Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
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- Date Issued: 2018
Balancing the interests of employer and employee in dismissal for misconduct
- Pillay, Prushothman Subramoney
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
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- Date Issued: 2018
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
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- Date Issued: 2018
The regulation of subsidies and regional trade among developing countries in the multilateral trading system: the case of export processing zones in Malawi
- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
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- Date Issued: 2018
- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
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- Date Issued: 2018
The criminalization of HIV and the significance of knowledge: a comparative study
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
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- Date Issued: 2018
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
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- Date Issued: 2018
The protection offered in terms of the 2014 labour law amendments to fixed-term Contract and part-time employees
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
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- Date Issued: 2018
- Authors: Ntsebeza, Uonella
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33567 , vital:32888
- Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
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- Date Issued: 2018
The praxis of reasonability and onus of proof in tax administration in South Africa
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
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- Date Issued: 2018
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
- Full Text:
- Date Issued: 2018