Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
Unfair discrimination and dismissal based on age
- Thompson, David Martin Ogilvie
- Authors: Thompson, David Martin Ogilvie
- Date: 2010
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10218 , http://hdl.handle.net/10948/1287 , Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.
- Full Text:
- Date Issued: 2010
- Authors: Thompson, David Martin Ogilvie
- Date: 2010
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10218 , http://hdl.handle.net/10948/1287 , Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.
- Full Text:
- Date Issued: 2010
Re-evaluating the law of vicarious liability in South Africa
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
South African criminal justice : a paradigm shift to victim-centred restorative justice?
- Authors: Apollos, Dumisani
- Date: 2014
- Subjects: Restorative justice -- South Africa , Apartheid -- South Africa -- History , Democracy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10183 , http://hdl.handle.net/10948/d1020078
- Description: The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.
- Full Text:
- Date Issued: 2014
- Authors: Apollos, Dumisani
- Date: 2014
- Subjects: Restorative justice -- South Africa , Apartheid -- South Africa -- History , Democracy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10183 , http://hdl.handle.net/10948/d1020078
- Description: The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.
- Full Text:
- Date Issued: 2014
Effecting social justice during conciliation and CON-ARB processes conducted at the CCMA and bargaining councils
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
- Authors: Mtumtum, Lungisa Shadrack
- Date: 2017
- Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa , Labor laws and legislation -- South Africa Labor disputes -- South Africa Collective bargaining -- South Africa Social justice -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19245 , vital:28807
- Description: The primary purpose of this treatise is to reexamine the South African labour dispute resolution bodies to see if they live up to the legislation’s promise of promoting social justice in conciliation, arbitration and con-arb processes concluded by them. The study defines social justice and examines this term in relation to employment law. The promotion of social justice was reaffirmed by the International Labour Organisation in its 1944 Conference which was later incorporated into its Constitution. The study briefly reviews the importance of this conference of the 10 May 1944 in relation to promoting social justice. The study also examines the social justice in the context of South African employment laws by briefly analyzing each South African labour legislation and the Constitution. This analysis is based on the provisions of legislation and considers if the respective provisions promote social justice as required by the International Labour Organisation’s Constitution and later by the South African Constitution. In analyzing the Constitution, and other legislation like the; Employment Equity Act (EEA), and Labour Relations Act (LRA), the treatise examines certain cases that were determined under the legislation from social justice perspective. The Labour Relations Act 66 of 1995 represents one of the major reforms of the labour relations system in South Africa. It is guided by the Constitution in terms of promoting social justice. The LRA established the dispute resolution bodies that are mandated by the legislation to resolve labour disputes. The study examines the systems and the processes employed by these bodies mainly the Commission for Conciliation; Mediation and Arbitration (CCMA) and the Bargaining Councils to determine if these systems are promoting social justice as required by the legislation. In conducting this analysis the study considers not only the processes adopted but also the manner in which the relevant dispute resolution bodies market their services; their strategies and operational plans; and accessibility and more. The study further investigates the challenges that these bodies are faced with that have a negative impact on their responsibility to promote social justice. These challenges faced by society range from unemployment, the level of literacy and the growing inequality within South African society. They constantly pose a challenge and require these bodies to consistently devise means and strategies to overcome them. A limited comparative study is undertaken in order to determine whether South Africa can learn anything from another country. There are several countries that may have been chosen to conduct this study but the study considered the fact that it needs to look at the country without the sub-Saharan Africa. The country that shares a history similar to South Africa due to the fact that the social challenges faced by the South African society might be similar to those faced by the country chosen. In this research Namibia was chosen as a suitable country to determine whether there is something to learn from it or not. In conclusion it is submitted that South African legislation pertaining to labour dispute resolution needs to constantly evolve in order to promote social justice challenges of the time.
- Full Text:
- Date Issued: 2017
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
An evaluation of the approaches of the arbitrators to the promotion of disputes resolution in public education
- Authors: Dolopi, Nkosana
- Date: 2016
- Subjects: Dispute resolution (Law) Arbitrators
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15378 , vital:28236
- Description: Public Education like other sectors such as Health, International Relations, Finance, Local Government and Environmental Affairs that fall under Public Administration as well as business in private, factory and industrial institutions are embraced or characterized by the concept of employer and employee relationships. These relationships are not always wholesome and harmonious but are overshadowed by disputes and strikes which bring about paralysis and polarization of the operation of business and educational stability in public service and administration sectors as well as at learning institutions. These disputes arise from inter alia, disagreements regarding wage negotiations, unfair dismissals, unfair labour practice involving appointments, promotions and transfers, mutual interest, severance pay, automatically dismissals, operational requirements dismissals (both single and multiple), disclosure of information disputes, organizational rights disputes, agency shop disputes, picketing disputes, unfair discrimination disputes in terms of the Employment Equity of Act as amended, and disputes involving the enforcement of collective agreements or the non-compliance with the Basic Conditions of Employment Act and others. Whilst there are similar trends and patterns of disputes in all these sectors, they are, however, not only differ in intensity and rapid occurrence but also in how they are negotiated and settled because the work environments are different at the level of operation, administration and management. What is common in all disputes is that they are all conciliated and arbitrated by arbitrators at the Commission for Conciliation, and Arbitration (hereafter referred to as the CCMA), Education Labour Relations Council (ELRC), Private Resolution Agencies and the Labour Court. The Apartheid era administration had labour laws which dealt with these disputes, but were not progressive and effective in handling them. This placed a heavy burden on the new ANC led government to change the laws of the previous regime. Most of these changes happened in the labour relations and the labour policies. In view of the above situation, the new political dispensation that came into existence and operation in 1994 developed a new labour legislative framework with specific focus on the review of the collective bargaining dispensation. Of significant importance was the entrenchment of labour rights in the Constitution of the Republic of South Africa, 1996. Section 23 of the Constitution is extensive in highlighting the importance to protect amongst others, the right of every trade union to organize and engage in collective bargaining, disclosure of information, restricted rights in domestic sector, rights to establish threshold of representativeness, organizational rights in collective agreements and disputes about organizational rights.
- Full Text:
- Date Issued: 2016
- Authors: Dolopi, Nkosana
- Date: 2016
- Subjects: Dispute resolution (Law) Arbitrators
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15378 , vital:28236
- Description: Public Education like other sectors such as Health, International Relations, Finance, Local Government and Environmental Affairs that fall under Public Administration as well as business in private, factory and industrial institutions are embraced or characterized by the concept of employer and employee relationships. These relationships are not always wholesome and harmonious but are overshadowed by disputes and strikes which bring about paralysis and polarization of the operation of business and educational stability in public service and administration sectors as well as at learning institutions. These disputes arise from inter alia, disagreements regarding wage negotiations, unfair dismissals, unfair labour practice involving appointments, promotions and transfers, mutual interest, severance pay, automatically dismissals, operational requirements dismissals (both single and multiple), disclosure of information disputes, organizational rights disputes, agency shop disputes, picketing disputes, unfair discrimination disputes in terms of the Employment Equity of Act as amended, and disputes involving the enforcement of collective agreements or the non-compliance with the Basic Conditions of Employment Act and others. Whilst there are similar trends and patterns of disputes in all these sectors, they are, however, not only differ in intensity and rapid occurrence but also in how they are negotiated and settled because the work environments are different at the level of operation, administration and management. What is common in all disputes is that they are all conciliated and arbitrated by arbitrators at the Commission for Conciliation, and Arbitration (hereafter referred to as the CCMA), Education Labour Relations Council (ELRC), Private Resolution Agencies and the Labour Court. The Apartheid era administration had labour laws which dealt with these disputes, but were not progressive and effective in handling them. This placed a heavy burden on the new ANC led government to change the laws of the previous regime. Most of these changes happened in the labour relations and the labour policies. In view of the above situation, the new political dispensation that came into existence and operation in 1994 developed a new labour legislative framework with specific focus on the review of the collective bargaining dispensation. Of significant importance was the entrenchment of labour rights in the Constitution of the Republic of South Africa, 1996. Section 23 of the Constitution is extensive in highlighting the importance to protect amongst others, the right of every trade union to organize and engage in collective bargaining, disclosure of information, restricted rights in domestic sector, rights to establish threshold of representativeness, organizational rights in collective agreements and disputes about organizational rights.
- Full Text:
- Date Issued: 2016
Decolonising the regulation of the right to strike in South Africa : an analysis
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
- Authors: Tsanyau, Dauglous
- Date: 2017
- Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/8813 , vital:33615
- Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
- Full Text:
- Date Issued: 2017
Ratifying the ILO convention no. 102 (social security minimum standards convention, 1952) by South Africa
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
The unfair labour practice relating to benefits
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
The extent to which review for unreasonableness is meaningfully incorporated in the promotion of Administrative Justice Act no. 3 of 2000
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
- Date Issued: 2006
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
- Date Issued: 2006
An analysis of the proposed amendments to the Labour Relations Act and other employment legislation
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
Comparing child justice legislation in South Africa and South Sudan
- Authors: Teny, Jamual Peter Malual
- Date: 2012
- Subjects: Children -- Legal status, laws, etc , Criminal law -- South Africa , Criminal law -- Sudan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10187 , http://hdl.handle.net/10948/d1020941
- Description: The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.
- Full Text:
- Date Issued: 2012
- Authors: Teny, Jamual Peter Malual
- Date: 2012
- Subjects: Children -- Legal status, laws, etc , Criminal law -- South Africa , Criminal law -- Sudan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10187 , http://hdl.handle.net/10948/d1020941
- Description: The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.
- Full Text:
- Date Issued: 2012
Trade union liability for unprotected strike action and violence in furtherance thereof
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
- Authors: Tshentu, Nolitha
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor unions -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43743 , vital:37040
- Description: The right to strike is a constitutional right and is integral to the process of collective bargaining. Collective bargaining tends to focus on sensitive issues like wages, as well as terms and conditions of employment. Resolving these issues often requires compromise from both parties through the collective bargaining process. However, in the earlier stages of labour law there was no collective bargaining. There was a master and servant relationship, there was no compromise, and it was limited only to the individual contract of hire. As much as a strikes are a constitutional right and are recognised by the law, they don’t seem to happen without violence and destruction of property. There are some views that view violence as being synonymous with strikes in South Africa. The legal framework is very clear and supports the right to strike, and emphasises that any demonstrations and picketing should be peaceful. Section 68(1)(b) of the LRA should be a solution to the violence that comes with unprotected strikes. This section refers to just and equitable compensation, it does not equate to full loss suffered and it also depends on the merits of each case. The ILO’s approach to illegitimate actions linked to strikes should be proportionate to the offence of fault committed. The Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and advancement of human rights and freedoms.1 According to the Constitution the right to assemble and demonstrate must be peaceful. According to Grogan the right is now seen as a necessary adjunct to collective bargaining and is constitutionally entrenched.2 The LRA supports participation in protected strikes. In cases of unprotected strikes allows employers to interdict that particular strike, sue for compensation in cases of damages and losses and also to discipline employees. The Regulations of the Gatherings Act (RGA) was introduced to reconcile the right of assemblers with the state’s interest in maintaining public order. Section 11 of this Act seeks to deter violence and discourages violation of others by ensuring that organisers are held liable. The LRA holds the trade union and its members liable for the damages and violence that is accompanied by unprotected strikes. Section 68(1)(b) seeks just and equitable compensation for damages caused during an unprotected strike. However even though there is recourse for the damages suffered during the protest, unprotected strikes still continue and the violence is still part of the strikes. It is proper to ask if this section is really serving what it was intended. Surely the intention of this section was to deter strikers from embarking on unprotected strikes as the LRA is very clear on the procedure to be followed before a strike action takes place. Another intention of this section is to curb the violence during strikes. This section seems to have fallen on deaf ears.
- Full Text:
- Date Issued: 2019
A comparative analysis of the development of performers' rights in the United Kingdom and South Africa
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
Rethinking minimum sentence Legislation
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
The legal framework pertaining to selected segments of the financial market
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
Labour dispute resolution in Uganda
- Chabo, Godsent, Ndimurwimo, Leah A
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
The auditor's duty of reasonable care and skill and the expectation to detect fraud
- Kujinga, Benjamin Tanyaradzwa
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008