The impact of violence during strike action on protected strikes
- Authors: Mbeleni, Xolani McGlory
- Date: 2017
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa Industrial relations -- South Africa , Violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45410 , vital:38614
- Description: This research has five important objectives. First, to outline the legal frame work regulating the right to strike. Outlining this legal framework is important in that it will provide an understanding of both the right to strike and the concept of a protected strike. it is crucial to understand what a protected strike is because the concept underlies the entire research. Without understanding it, it will be impossible to answer the main research question. Second, to investigate the causes of violence during protected strikes. An examination of the causes of violence enables the study to suggest possible solutions to end violent strike action in future. After all the LRA envisages in section 1, labour peace and an effective resolution of disputes. Third, to examine how the LRA regulates the use of violence during protected strikes. An understanding of how the LRA regulates violent strike action is important since the LRA is an important piece of legislation which governs South African labour relations. It is important to obtain guidance on how the law regulates such conduct. Fourth, to ascertain the courts’ approach towards violence during strikes The courts’ approach helps us understand how the courts will deal with strike violence during 5 protected strikes. It is also noteworthy that case precedents in this regard will be of importance when faced with similar acts of violence during strike action. Fifth, to examine the legal implications of violence during protected strikes. This objective directly answers the main research question and this will enable the study to offer possible recommendations in the final chapter of this study.
- Full Text:
- Date Issued: 2017
- Authors: Mbeleni, Xolani McGlory
- Date: 2017
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa Industrial relations -- South Africa , Violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45410 , vital:38614
- Description: This research has five important objectives. First, to outline the legal frame work regulating the right to strike. Outlining this legal framework is important in that it will provide an understanding of both the right to strike and the concept of a protected strike. it is crucial to understand what a protected strike is because the concept underlies the entire research. Without understanding it, it will be impossible to answer the main research question. Second, to investigate the causes of violence during protected strikes. An examination of the causes of violence enables the study to suggest possible solutions to end violent strike action in future. After all the LRA envisages in section 1, labour peace and an effective resolution of disputes. Third, to examine how the LRA regulates the use of violence during protected strikes. An understanding of how the LRA regulates violent strike action is important since the LRA is an important piece of legislation which governs South African labour relations. It is important to obtain guidance on how the law regulates such conduct. Fourth, to ascertain the courts’ approach towards violence during strikes The courts’ approach helps us understand how the courts will deal with strike violence during 5 protected strikes. It is also noteworthy that case precedents in this regard will be of importance when faced with similar acts of violence during strike action. Fifth, to examine the legal implications of violence during protected strikes. This objective directly answers the main research question and this will enable the study to offer possible recommendations in the final chapter of this study.
- Full Text:
- Date Issued: 2017
The role of the CCMA to mitigate job losses in the context of operational requirements dismissal
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
- Authors: Mbali, Rian Bongani
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa South Africa. Commission for Conciliation, Mediation, and Arbitration -- Rules and practice , Mediation and conciliation, Industria -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45536 , vital:38641
- Description: All employers at some point in time may find themselves under pressure, facing financial challenges, which may force them into contemplating some reductions in their operating costs. This could result in an exercise that may entail restructuring the wage bill. This in turn could eventually result in the dismissal of employees for operational reasons. The concept of job security is a new phenomenon in the labour market and with localisation and the economic crisis that have caused businesses to become competitive, workers face the threat of losing jobs daily. It must be stated that the International Labour Organisation (hereinafter referred to as ILO), which is an international body responsible for developing principles and guidelines which regulate labour relations in the world, had only in 1963 taken some steps to give due regard to the law that seek to promote employment security1. Until then, the common law dictated the nature of the relationship with regard to the rules that govern the termination of employment. The study will further investigate the international trends in the embedding of the Convention of Termination of Employment. Against this context, this treatise seeks to highlight the work done to further provide measures of employment security for workers facing dismissal based on operational requirements. The study will examine the role of the Commission for the Conciliation, Mediation and Arbitration (hereinafter referred to as CCMA), an impartial body in South Africa, whose main function is to prevent and resolve labour disputes, as well as to mitigate job losses in the context of operational requirements dismissals.
- Full Text:
- Date Issued: 2017
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
The defence of battered woman syndrome
- Matyobeni, Phathiswa Vanesharee
- Authors: Matyobeni, Phathiswa Vanesharee
- Date: 2017
- Subjects: Abused women -- South Africa , Battered woman syndrome -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45432 , vital:38616
- Description: Women in South Africa are a vulnerable group, who face threats of violence and abuse daily. The worst aspect of this being domestic abuse or intimate partner violence. Domestic abuse between partners is a common occurrence that results not only from a power imbalance in the relationship but from expectations of society regarding the role of the woman and accepted behaviours, regarding the disciplining of the wife, that is held by communities. Despite attempts by law enforcement and the State to minimise and control domestic abuse; domestic abuse remains on the rise. These women find themselves unprotected and facing possible death at the hands of a loved one. In fear for their lives, these women resolve to kill their partners before their husbands kill them. This changes their status from victim to perpetrator. Consequently, they face prosecution.This dilemma is not unique to South Africa, and as a result, author Lenore Walker created Battered Woman Syndrome. This syndrome was created to explain the experience of these women and answer the questions as to why these women remain in these relationships. Also explained is why they feel trapped. This is a psychological theory that has been used by courts in Australia and the United States to assist the battered woman in justifying her actions when claiming self-defence. South Africa, however, has not made use of Battered Woman Syndrome when defending the battered woman in South African courts.
- Full Text:
- Date Issued: 2017
- Authors: Matyobeni, Phathiswa Vanesharee
- Date: 2017
- Subjects: Abused women -- South Africa , Battered woman syndrome -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45432 , vital:38616
- Description: Women in South Africa are a vulnerable group, who face threats of violence and abuse daily. The worst aspect of this being domestic abuse or intimate partner violence. Domestic abuse between partners is a common occurrence that results not only from a power imbalance in the relationship but from expectations of society regarding the role of the woman and accepted behaviours, regarding the disciplining of the wife, that is held by communities. Despite attempts by law enforcement and the State to minimise and control domestic abuse; domestic abuse remains on the rise. These women find themselves unprotected and facing possible death at the hands of a loved one. In fear for their lives, these women resolve to kill their partners before their husbands kill them. This changes their status from victim to perpetrator. Consequently, they face prosecution.This dilemma is not unique to South Africa, and as a result, author Lenore Walker created Battered Woman Syndrome. This syndrome was created to explain the experience of these women and answer the questions as to why these women remain in these relationships. Also explained is why they feel trapped. This is a psychological theory that has been used by courts in Australia and the United States to assist the battered woman in justifying her actions when claiming self-defence. South Africa, however, has not made use of Battered Woman Syndrome when defending the battered woman in South African courts.
- Full Text:
- Date Issued: 2017
An analysis of the countervailing measures used to address the anti-competitive effects of Government subsidies in the African Continental Free Trade Area
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
The fairness of sanctions for misconduct dismissals
- Matoti, Kenneth Augustus Linda
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
- Authors: Matoti, Kenneth Augustus Linda
- Date: 2017
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa Economic sanctions -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45503 , vital:38622
- Description: The determination of the fairness of the sanction of dismissal depends on a number of factors and is also influenced by various court decisions. One of the factors which play a key role in the determination of the fairness of the sanction is substantive fairness. Substantive fairness can be described as the valid and fair reason for the sanction of dismissal. The employer can only dismiss an employee if the employer has valid and fair reason to do so. Valid refers to lawful reason and fairness involves the consideration of all factors. After this exercise the sanction of dismissal becomes the only appropriate sanction, no alternative sanction can be considered. In evaluating the substantive fairness of the sanction of dismissal, Item 7 of the Code requires the employer to consider whether a rule was in place, the employee was aware of the rule, the rule has been consistently applied and whether the employee contravened a rule or not. If this has not happened the sanction imposed by the employer will be substantively unfair.
- Full Text:
- Date Issued: 2017
Blessing or curse? : an evaluation of the African Growth Opportunity Act
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
- Full Text:
- Date Issued: 2017
- Authors: Matenga, Lloyd
- Date: 2017
- Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8825 , vital:33667
- Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
- Full Text:
- Date Issued: 2017
A comparison of the petroleum legislation of gabon and South Africa as instruments of development
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
- Authors: Massamba-Animbo, Stephane
- Date: 2015
- Subjects: Petroleum law and legislation -- South Africa , Mineral industries -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10302 , http://hdl.handle.net/10948/d1021143
- Description: The African continent is endowed with vast natural resources of minerals, such as cobalt, diamonds, gold, bauxite, iron, platinum, silver, uranium and mineral oil. Oil is unequally distributed in the continent, with some countries, such as Cameroon, Chad, Congo Brazzaville, Equatorial Guinea, Gabon and South Africa, being particularly well endowed. These natural resources can help accelerate development on the continent, especially in Gabon and South Africa if used strategically. This dissertation gives an overview of the international instruments, which play a key role in petroleum legislation and development. At the global level, the international legal instruments related to the permanent sovereignty over natural resources (PSNR), such as the 1962 Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources indicates that States have the rights to exploit freely national resources and wealth, use and dispose their natural resources for the realisation of their economic development in accordance with their national interest. The PSNR must be exercised in line with indigenous peoples’ rights and the respect of rules concerning the expropriation. At the African level, with regard to the right to the State to exploit freely natural resources, the African (Banjul) Charter on Human and Peoples’ Rights of 1981 has similar provisions as the Resolution 1803. The African (Banjul) Charter specifies that no peoples can be deprived of the right to dispose their natural resources. The African Commission on Human and Peoples’ Rights is tasked to interpret the African (Banjul) Charter. The Resolution on Human Rights-Based Approach to Natural Resources and Governance has also indicated principles in relation to the governance of natural resources. At the regional level, the Constitutive Treaty of the Central African Economic and Monetary Community (CAEMC) of 1994 and the Southern African Development Community (SADC) Treaty of 1992 do not provide explicit provisions relative to the PSNR and the management of natural resources. Therefore, it is important to examine if at the national level, the domestic instruments of both States deal with the PSNR.
- Full Text:
- Date Issued: 2015
The effectiveness of human child trafficking legislation in South Africa
- Authors: Mashiyi, Tandeka
- Date: 2010
- Subjects: Human trafficking -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10281 , http://hdl.handle.net/10948/1289 , Human trafficking -- Law and legislation -- South Africa
- Description: Trafficking in human beings is a major problem worldwide. Human trafficking is as a result of a complex set of interrelated push and pull factors. Push factors includeinter alia poverty, a lack of opportunities, dislocation of families, gender, racial and ethnic inequalities and the break-up of families. Research shows that pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel. It is as a result of the global epidemic of this trafficking in persons that certain instruments on an international level as well as legislation on a national level have been enacted. The question which arises is: are these pieces of legislation effective in dealing with the scourge of human trafficking? Every legislation passed will have its strengths, as well as weaknesses but the main objective of such legislation should always be to combat, criminalise and prosecute the specific criminal act. Furthermore, the enacted legislation should be designed to effectively combat the challenges which threaten to exacerbate the criminal act. Failing to fulfil this intention will render such legislation nugatory. This treatise will be looking at various international instruments that have been passed abd v adopted by various countries, which specifically deal with trafficking in humans generally and specifically in relation to the children. International instruments that will be discussed include inter alia, slavery Convention, Convention on the Rights of the child, Worst forms or Child Labour Convention, Parlemo Protocol, United Nations Transnational Organised Crime Protocol to mention but a few. All these instruments have in a way dealt with and made provisions for the criminalisation of the act of trafficking in humans and a the scrounge of trafficking escalates the international governments strive to enact instruments that are going to be able to curtail this pandemic of trafficking. As more focus will be on the South African legislation this treatise is also going to examine all the relevant piece of legislation that have been passed by the South African government in order to deal with human trafficking. These will include the discussion of the Constitution, Child Care Act, Children’s Act, Children’s Amendment Act, Criminal Law (Sexual Offences) and Related matters. Amendment Act Prevention of Organised Crime Act as well as the Prevention and combating of Trafficking in Persons Bill. The treatise will listen critically discuss the Bill in so far as its strengths and weaknesses are concerned.
- Full Text:
- Date Issued: 2010
- Authors: Mashiyi, Tandeka
- Date: 2010
- Subjects: Human trafficking -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10281 , http://hdl.handle.net/10948/1289 , Human trafficking -- Law and legislation -- South Africa
- Description: Trafficking in human beings is a major problem worldwide. Human trafficking is as a result of a complex set of interrelated push and pull factors. Push factors includeinter alia poverty, a lack of opportunities, dislocation of families, gender, racial and ethnic inequalities and the break-up of families. Research shows that pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel. It is as a result of the global epidemic of this trafficking in persons that certain instruments on an international level as well as legislation on a national level have been enacted. The question which arises is: are these pieces of legislation effective in dealing with the scourge of human trafficking? Every legislation passed will have its strengths, as well as weaknesses but the main objective of such legislation should always be to combat, criminalise and prosecute the specific criminal act. Furthermore, the enacted legislation should be designed to effectively combat the challenges which threaten to exacerbate the criminal act. Failing to fulfil this intention will render such legislation nugatory. This treatise will be looking at various international instruments that have been passed abd v adopted by various countries, which specifically deal with trafficking in humans generally and specifically in relation to the children. International instruments that will be discussed include inter alia, slavery Convention, Convention on the Rights of the child, Worst forms or Child Labour Convention, Parlemo Protocol, United Nations Transnational Organised Crime Protocol to mention but a few. All these instruments have in a way dealt with and made provisions for the criminalisation of the act of trafficking in humans and a the scrounge of trafficking escalates the international governments strive to enact instruments that are going to be able to curtail this pandemic of trafficking. As more focus will be on the South African legislation this treatise is also going to examine all the relevant piece of legislation that have been passed by the South African government in order to deal with human trafficking. These will include the discussion of the Constitution, Child Care Act, Children’s Act, Children’s Amendment Act, Criminal Law (Sexual Offences) and Related matters. Amendment Act Prevention of Organised Crime Act as well as the Prevention and combating of Trafficking in Persons Bill. The treatise will listen critically discuss the Bill in so far as its strengths and weaknesses are concerned.
- Full Text:
- Date Issued: 2010
Accountability of United Nations peacekeepers for sexual violence
- Authors: Maseka, Ntemesha Mwila
- Date: 2019
- Subjects: United Nations -- Peacekeeping forces , Sex crimes Women (International law) Women -- Crimes against Women (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/${Handle} , vital:36279
- Description: Over the last three decades reports of sexual exploitation and abuse by UN peacekeepers while on mission have emerged with predictable regularity. What is particularly disturbing is that peacekeepers, who are viewed as representatives of the international community in the arduous environments in which they operate, commit these crimes against the local population with apparent impunity. This impunity is rooted in the perception that peacekeepers are immune from prosecution for crimes they commit while deployed – which in most cases has not been far from the truth. This dissertation considers whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit sexual violence. The study considers this question from three main angles: the legal status of peacekeepers, the lex specialis prohibition of sexual violence and the domestic application of the law using South Africa as an example. The determination of the legal status of peacekeepers is the first port of call to establish the applicable framework when crimes are committed and the source of their immunity. To achieve this, a framework of UN peacekeeping operations is outlined which considers the origin, constitutional basis and legal principles governing such operations culminating in a definition of peacekeeping. The study relies on the definition of peacekeeping advanced by the Capstone Doctrine which besides sitting at the top of the doctrinal framework governing UN operations, identifies three categories of peacekeepers - military, police and civilian personnel. This distinction is important because each category is subject to different rules. The study concentrates only on the military personnel who form the largest contingent of peacekeepers, who are the most likely offenders and who are immune from host state jurisdiction. It is submitted that while peacekeepers’ immunity is based on the status-of-forces agreement concluded between the UN and a troop-contributing country, the doctrine of sovereign immunity confirms that one State cannot exercise jurisdiction over another State’s armed forces. This does not mean such forces exist in a legal vacuum, but rather the troop-contributing country is obliged to exercise criminal and disciplinary jurisdiction over them. Due to the operational environment of UN peacekeeping operations, IHL is identified as the lex specialis. A synopsis of this densely codified body of law reveals sexual violence is prohibited both expressly and implicitly in treaty and customary law. The study contends with the applicability of IHL to UN peacekeeping operations, drawing the conclusion that while it can be applied, the obligation for enforcement ultimately lies with individual States. South Africa’s legislative framework is examined, specifically the Implementation of the Geneva Conventions Act to determine whether the State complies with its IHL obligations which includes the exercise of criminal jurisdiction over peacekeepers deployed on a UN mission. The study concludes that while there is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, the law – at least in the South African case - is not deficient. Based on the analysis, recommendations are proposed to ensure the accountability of peacekeepers who commit sexual violence.
- Full Text:
- Date Issued: 2019
- Authors: Maseka, Ntemesha Mwila
- Date: 2019
- Subjects: United Nations -- Peacekeeping forces , Sex crimes Women (International law) Women -- Crimes against Women (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/${Handle} , vital:36279
- Description: Over the last three decades reports of sexual exploitation and abuse by UN peacekeepers while on mission have emerged with predictable regularity. What is particularly disturbing is that peacekeepers, who are viewed as representatives of the international community in the arduous environments in which they operate, commit these crimes against the local population with apparent impunity. This impunity is rooted in the perception that peacekeepers are immune from prosecution for crimes they commit while deployed – which in most cases has not been far from the truth. This dissertation considers whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit sexual violence. The study considers this question from three main angles: the legal status of peacekeepers, the lex specialis prohibition of sexual violence and the domestic application of the law using South Africa as an example. The determination of the legal status of peacekeepers is the first port of call to establish the applicable framework when crimes are committed and the source of their immunity. To achieve this, a framework of UN peacekeeping operations is outlined which considers the origin, constitutional basis and legal principles governing such operations culminating in a definition of peacekeeping. The study relies on the definition of peacekeeping advanced by the Capstone Doctrine which besides sitting at the top of the doctrinal framework governing UN operations, identifies three categories of peacekeepers - military, police and civilian personnel. This distinction is important because each category is subject to different rules. The study concentrates only on the military personnel who form the largest contingent of peacekeepers, who are the most likely offenders and who are immune from host state jurisdiction. It is submitted that while peacekeepers’ immunity is based on the status-of-forces agreement concluded between the UN and a troop-contributing country, the doctrine of sovereign immunity confirms that one State cannot exercise jurisdiction over another State’s armed forces. This does not mean such forces exist in a legal vacuum, but rather the troop-contributing country is obliged to exercise criminal and disciplinary jurisdiction over them. Due to the operational environment of UN peacekeeping operations, IHL is identified as the lex specialis. A synopsis of this densely codified body of law reveals sexual violence is prohibited both expressly and implicitly in treaty and customary law. The study contends with the applicability of IHL to UN peacekeeping operations, drawing the conclusion that while it can be applied, the obligation for enforcement ultimately lies with individual States. South Africa’s legislative framework is examined, specifically the Implementation of the Geneva Conventions Act to determine whether the State complies with its IHL obligations which includes the exercise of criminal jurisdiction over peacekeepers deployed on a UN mission. The study concludes that while there is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, the law – at least in the South African case - is not deficient. Based on the analysis, recommendations are proposed to ensure the accountability of peacekeepers who commit sexual violence.
- Full Text:
- Date Issued: 2019
Class actions as a means of enhancing access to justice in South Africa
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
Shortcomimgs of the criminal law (sexual offences and related matters) amendment act
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
International trade and environmental disputes : an analysis of Article XX of the General Agreement on Tariffs and Trade (1994) and environmental policies of the developing and developed world
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
International law before municipal courts: the role of International Court of Justice decisions in domestic court proceedings with specific reference to United States case examples
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
A comparison of the implementation of equal pay for work of equal value with Canadian law
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
- Authors: Mamashela, Ntsoaki Lydia
- Date: 2017
- Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18332 , vital:28622
- Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
- Full Text:
- Date Issued: 2017
Alcoholism and being under the influence of alcohol
- Authors: Maliti, Zandisile
- Date: 2016
- Subjects: Alcoholism and employment , Misconduct in office , Alcoholism -- Diagnosis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8416 , vital:26354
- Description: Being under the influence of alcohol at work or during working hours is dealt with as misconduct. On the other hand, in a case where an employee suffers from alcoholism, such a case is treated as incapacity due to ill health. The possibility of overlap between the two has contributed to a misconception. Alcoholism cases, are at times, incorrectly treated as misconduct. The same applies to cases of being under the influence of alcohol where such cases would be treated as incapacity instead of being treated as misconduct. The distinction between alcoholism and being under the influence of alcohol was made clear in Transnet Freight Rail v Transnet Bargaining Council C644/2009 [2011] ZALCJHB (4 March 2011) where the Labour Court held that employers have an obligation of assisting employees who suffer from alcoholism with counselling and rehabilitation. Such an obligation does not arise when an employee, who is not an alcoholic, comes to work under the influence of alcohol. Whilst the nature of work is taken into consideration in determining whether an employee is under the influence of alcohol or not, the major cause of disharmony in the determination is a common defence of having consumed alcohol during a night before and whether the physical observations combined with positive breathalyser test results or on their own are indicative, on the balance of probabilities, that an employee is under the influence of alcohol or not. There is no need for an employee to injure himself or herself or other employees before a determination is made that he or she is under the influence of alcohol. Physical observations combined with breathalyzer test results, can be indicative of an employee that is being under the influence of alcohol. The nature of work should be an aggravating or mitigating factor rather than a determining factor of guilt.
- Full Text:
- Date Issued: 2016
- Authors: Maliti, Zandisile
- Date: 2016
- Subjects: Alcoholism and employment , Misconduct in office , Alcoholism -- Diagnosis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8416 , vital:26354
- Description: Being under the influence of alcohol at work or during working hours is dealt with as misconduct. On the other hand, in a case where an employee suffers from alcoholism, such a case is treated as incapacity due to ill health. The possibility of overlap between the two has contributed to a misconception. Alcoholism cases, are at times, incorrectly treated as misconduct. The same applies to cases of being under the influence of alcohol where such cases would be treated as incapacity instead of being treated as misconduct. The distinction between alcoholism and being under the influence of alcohol was made clear in Transnet Freight Rail v Transnet Bargaining Council C644/2009 [2011] ZALCJHB (4 March 2011) where the Labour Court held that employers have an obligation of assisting employees who suffer from alcoholism with counselling and rehabilitation. Such an obligation does not arise when an employee, who is not an alcoholic, comes to work under the influence of alcohol. Whilst the nature of work is taken into consideration in determining whether an employee is under the influence of alcohol or not, the major cause of disharmony in the determination is a common defence of having consumed alcohol during a night before and whether the physical observations combined with positive breathalyser test results or on their own are indicative, on the balance of probabilities, that an employee is under the influence of alcohol or not. There is no need for an employee to injure himself or herself or other employees before a determination is made that he or she is under the influence of alcohol. Physical observations combined with breathalyzer test results, can be indicative of an employee that is being under the influence of alcohol. The nature of work should be an aggravating or mitigating factor rather than a determining factor of guilt.
- Full Text:
- Date Issued: 2016
The operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws
- Makobe, Melanchton Phillip Malepe
- Authors: Makobe, Melanchton Phillip Malepe
- Date: 2001
- Subjects: Letters of credit Conflict of laws Fraud
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3710 , http://hdl.handle.net/10962/d1007281
- Description: The thesis covers aspects of the law relating to letters of credit. It deals with the operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws. According to the principle of independence, banks must make payment in terms of the letter of credit irrespective of any dispute that may exist between the buyer and the seller in an underlying contract or other contracts. Although the principle of independence is clearly established, it is not absolute. An exception occurs in the case of fraud. Thus, if the seller has committed fraud, such as tendering forged documents, the buyer can instruct the bank not to make payment in terms of the credit. If the bank refuses to dishonour the letter of credit, the buyer can apply to a court to interdict the bank from making payment. In South African law the buyer must establish that the seller was party to fraud in relation to the documents presented to the bank for payment before the court can grant an interdict. This thesis also examines the standard of proof of fraud required in letters of credit transactions and proposes a standard of proof which will not unduly favour the seller whose good faith is in dispute. The fast growing technology of computers and telecommunications is rapidly changing the methods of transacting business by paper documentation and letter of credit transactions are no exception. At present the buyer can apply to the bank to issue a letter of credit through the computer and banks also communicate letter of credit transactions through computer networks. However, the beneficiary still has to present documents to the bank for payment in paper form. It is proposed that the Uniform Custom and Practice For Documentary Credits (UCP) be amended to provide for fully computerised letters of credit transactions. Another objective of the thesis is to examine the doctrine of strict compliance. In terms of the doctrine of strict compliance documents presented under the credit must comply strictly with the requirements set out in the credit. If banks are satisfied that the documents presented by the seller strictly conform with the requirements of the credit they are obliged to make payment as required by the credit. It is proposed that the doctrine of strict compliance should not be applied strictly. In other words, the banks should make payment in terms of the credit if the discrepancy in the documents is trivial. The thesis also covers conflict of laws issues. As the UCP does not have rules dealing with conflict of laws, most jurisdictions have developed their own rules to be applied by the courts in cases of conflict of laws. The thesis examines the different rules of conflict of laws as developed and practiced by different jurisdictions.
- Full Text:
- Date Issued: 2001
- Authors: Makobe, Melanchton Phillip Malepe
- Date: 2001
- Subjects: Letters of credit Conflict of laws Fraud
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3710 , http://hdl.handle.net/10962/d1007281
- Description: The thesis covers aspects of the law relating to letters of credit. It deals with the operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws. According to the principle of independence, banks must make payment in terms of the letter of credit irrespective of any dispute that may exist between the buyer and the seller in an underlying contract or other contracts. Although the principle of independence is clearly established, it is not absolute. An exception occurs in the case of fraud. Thus, if the seller has committed fraud, such as tendering forged documents, the buyer can instruct the bank not to make payment in terms of the credit. If the bank refuses to dishonour the letter of credit, the buyer can apply to a court to interdict the bank from making payment. In South African law the buyer must establish that the seller was party to fraud in relation to the documents presented to the bank for payment before the court can grant an interdict. This thesis also examines the standard of proof of fraud required in letters of credit transactions and proposes a standard of proof which will not unduly favour the seller whose good faith is in dispute. The fast growing technology of computers and telecommunications is rapidly changing the methods of transacting business by paper documentation and letter of credit transactions are no exception. At present the buyer can apply to the bank to issue a letter of credit through the computer and banks also communicate letter of credit transactions through computer networks. However, the beneficiary still has to present documents to the bank for payment in paper form. It is proposed that the Uniform Custom and Practice For Documentary Credits (UCP) be amended to provide for fully computerised letters of credit transactions. Another objective of the thesis is to examine the doctrine of strict compliance. In terms of the doctrine of strict compliance documents presented under the credit must comply strictly with the requirements set out in the credit. If banks are satisfied that the documents presented by the seller strictly conform with the requirements of the credit they are obliged to make payment as required by the credit. It is proposed that the doctrine of strict compliance should not be applied strictly. In other words, the banks should make payment in terms of the credit if the discrepancy in the documents is trivial. The thesis also covers conflict of laws issues. As the UCP does not have rules dealing with conflict of laws, most jurisdictions have developed their own rules to be applied by the courts in cases of conflict of laws. The thesis examines the different rules of conflict of laws as developed and practiced by different jurisdictions.
- Full Text:
- Date Issued: 2001