Dismissals within the context of collective bargaining
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
Unfair discrimination in employment
- Gixana-Khambule, Bulelwa Judith
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
Substantive fairness in dismissals based on operational requirements
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
Civil liability of an employer for injuries on duty
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
The regulation of insider trading in South Africa: a roadmap for effective, competitive and adequate regulatory statutory framework
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
Procedural fairness in unprotected strike dismissals
- Authors: Nel, Werner
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11049 , http://hdl.handle.net/10948/314 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Description: The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.
- Full Text:
- Date Issued: 2003
- Authors: Nel, Werner
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11049 , http://hdl.handle.net/10948/314 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa , South Africa. Labour Relations Act -- 1995
- Description: The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.
- Full Text:
- Date Issued: 2003
The legality and enforceability of an automatic termination clause in the contract of employment
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
The role of the judiciary in protecting the right to freedom of expression in difficult political environments: a case study of Zimbabwe
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
Substantive fairness in the context of dismissal for team misconduct
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
Employer liability for sexual harassment in the workplace revisited
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
Head of state immunity under the Rome statute of the International Criminal Court: an analysis of the contemporary legal issues and the African Union’s response to the prosecution of African heads of state
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
Unfair labour practice relating to promotion in the public education sector
- Authors: Tsheko, Toto
- Date: 2015
- Subjects: Unfair labor practices , Mediation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6050 , vital:21034
- Description: This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.
- Full Text:
- Date Issued: 2015
- Authors: Tsheko, Toto
- Date: 2015
- Subjects: Unfair labor practices , Mediation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6050 , vital:21034
- Description: This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.
- Full Text:
- Date Issued: 2015
Automatic termination clauses in employment contracts
- Authors: Ndzendze, Kutala
- Date: 2019
- Subjects: Labor contract -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/41808 , vital:36594
- Description: This study aims to establish Automatic Termination Clauses in Employment contracts by analyzing the provisions of the Constitution of the Republic of South Africa, Labour Relations Act and the precedents. The automatic termination of employment contract means that the contract is terminated without giving an employee the opportunity to state his or her version as per the audi alteram partem principle. In essence, the employee is deprived of his or her right to a fair dismissal as outlined in the Labour Relations Act. The automatic termination clauses in employment contract means that the employment contract will come to an end when the employee’s services are no longer required or when the employer simply does no longer want to keep the employee at work. The Constitution of the Republic of South Africa provides that “everyone has the right to fair labour practices”.1 In terms of the Labour Relations Act (hereinafter referred to as “the LRA”),2 every employee has the right not to be unfairly dismissed. An employment contract between an employee and employer arises out of a contract to perform services. This is so whether the contract is in writing or not. Dismissal is defined in the LRA3 as where the employer has terminated employment with or without a notice. The thesis is composed of five chapters, each of them dealing with different aspects of automatic termination clauses in employment contracts.
- Full Text:
- Date Issued: 2019
- Authors: Ndzendze, Kutala
- Date: 2019
- Subjects: Labor contract -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/41808 , vital:36594
- Description: This study aims to establish Automatic Termination Clauses in Employment contracts by analyzing the provisions of the Constitution of the Republic of South Africa, Labour Relations Act and the precedents. The automatic termination of employment contract means that the contract is terminated without giving an employee the opportunity to state his or her version as per the audi alteram partem principle. In essence, the employee is deprived of his or her right to a fair dismissal as outlined in the Labour Relations Act. The automatic termination clauses in employment contract means that the employment contract will come to an end when the employee’s services are no longer required or when the employer simply does no longer want to keep the employee at work. The Constitution of the Republic of South Africa provides that “everyone has the right to fair labour practices”.1 In terms of the Labour Relations Act (hereinafter referred to as “the LRA”),2 every employee has the right not to be unfairly dismissed. An employment contract between an employee and employer arises out of a contract to perform services. This is so whether the contract is in writing or not. Dismissal is defined in the LRA3 as where the employer has terminated employment with or without a notice. The thesis is composed of five chapters, each of them dealing with different aspects of automatic termination clauses in employment contracts.
- Full Text:
- Date Issued: 2019
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
Carriage of goods by sea - from Hague to Rotterdam: safer waters
- Authors: Metuge, Denning N
- Date: 2012
- Subjects: International trade , Transportation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10235 , http://hdl.handle.net/10948/d1011561 , International trade , Transportation
- Description: The back bone of international trade has always been international transport. Without good transport networks, the movement of goods and services from one frontier to another would be an uphill task, and would greatly hinder development in international trade. The impact of such poor transport networks would reflect negatively on economies that rely on international trade for the growth of their nations. Nevertheless, perfect transport networks would be useless if the performance of the business of carriage was not regulated by a law developed to meet the standards established by time, and that would regulate the relationship of the parties under contracts of carriage, mainly the carrier, consignor and consignee, so as to ensure certainty and equality in the allocation of risks between the parties thereunder. This research focuses on the carriage of goods by sea. Like most other modes of transport, one of the major issues that arises in the business of carriage of goods by sea is the conflict between the carrier, consignor and consignee, with regards to the allocation of risk in the carriage. Over the years, early rules that were developed to regulate the relationship of the parties under contracts of carriage of goods by sea placed the carrier in a dominant position over the consignor. The carrier issued a standard bill of lading which exempted him from almost all liability for damage or loss of the goods in his care. The consignors and bona fide third parties, not satisfied with the terms of carriage contracts brought a lot of pressure to bear on their governments to enact legislation protecting their interests in the transaction. The United States of America were the first to pass such national law revising the position of the parties under contracts of carriage. In 1893 the United States of America passed the Harter Act. This Act aimed at imposing limits of liability on the carrier to which no derogation could be brought. However, this was a dangerous precedence which was going to hinder international trade rather than improve on it, as different nations developing local legislation on carriage meant conflict of laws. In order to avoid the extensive nationalisation of carriage laws, the international maritime community set to develop rules that would regulate carriage by sea. Over the years convention has succeeded convention such that today four international regimes (The Hague Rules, Hague-Visby Rules, Hamburg Rules and Rotterdam Rules), exist regulating carriage of goods by sea. This research takes an in-depth look at these regimes that were developed to regulate carriage by sea, and the author aims to identify a particular regime that meets the standards of modern day practice of carriage of goods, and advocate for the ratification of this regime, to the exclusion of all others so as to foster uniformity, certainty and equality in the business of carriage of goods by sea.
- Full Text:
- Date Issued: 2012
- Authors: Metuge, Denning N
- Date: 2012
- Subjects: International trade , Transportation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10235 , http://hdl.handle.net/10948/d1011561 , International trade , Transportation
- Description: The back bone of international trade has always been international transport. Without good transport networks, the movement of goods and services from one frontier to another would be an uphill task, and would greatly hinder development in international trade. The impact of such poor transport networks would reflect negatively on economies that rely on international trade for the growth of their nations. Nevertheless, perfect transport networks would be useless if the performance of the business of carriage was not regulated by a law developed to meet the standards established by time, and that would regulate the relationship of the parties under contracts of carriage, mainly the carrier, consignor and consignee, so as to ensure certainty and equality in the allocation of risks between the parties thereunder. This research focuses on the carriage of goods by sea. Like most other modes of transport, one of the major issues that arises in the business of carriage of goods by sea is the conflict between the carrier, consignor and consignee, with regards to the allocation of risk in the carriage. Over the years, early rules that were developed to regulate the relationship of the parties under contracts of carriage of goods by sea placed the carrier in a dominant position over the consignor. The carrier issued a standard bill of lading which exempted him from almost all liability for damage or loss of the goods in his care. The consignors and bona fide third parties, not satisfied with the terms of carriage contracts brought a lot of pressure to bear on their governments to enact legislation protecting their interests in the transaction. The United States of America were the first to pass such national law revising the position of the parties under contracts of carriage. In 1893 the United States of America passed the Harter Act. This Act aimed at imposing limits of liability on the carrier to which no derogation could be brought. However, this was a dangerous precedence which was going to hinder international trade rather than improve on it, as different nations developing local legislation on carriage meant conflict of laws. In order to avoid the extensive nationalisation of carriage laws, the international maritime community set to develop rules that would regulate carriage by sea. Over the years convention has succeeded convention such that today four international regimes (The Hague Rules, Hague-Visby Rules, Hamburg Rules and Rotterdam Rules), exist regulating carriage of goods by sea. This research takes an in-depth look at these regimes that were developed to regulate carriage by sea, and the author aims to identify a particular regime that meets the standards of modern day practice of carriage of goods, and advocate for the ratification of this regime, to the exclusion of all others so as to foster uniformity, certainty and equality in the business of carriage of goods by sea.
- Full Text:
- Date Issued: 2012
Euthanasia: a modern legal perspective
- Authors: Welgemoed, Marc
- Date: 2013
- Subjects: Right to die -- Law and legislation -- South Africa Terminally ill -- Legal status, laws, etc. -- South Africa , Euthanasia -- South Africa Assisted suicide -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45849 , vital:39222
- Description: Euthanasia and assisted suicide is currently illegal in South Africa and amounts to murder. Despite the fact that South Africa has a Constitution, including a Bill of Rights, as well as strong lobbying in favour of the legalization of euthanasia, no legal changes have been effected. Other issues closely intricated with euthanasia, like the so-called “living wills” and palliative care, where an increase of medication can possibly shorten the lifespan of a patient (“double-effect”-medication), are also problematic at the moment. The South African Law Commission has made recommendations regarding the legalization of euthanasia and assisted suicide, as well as the validity of living wills and “double-effect” palliative care practices as far back as 1997, but to present none of the recommendations had been adhered to. The only indication in favour of the toleration of euthanasia and assisted suicide is that the courts have handed down lenient sentences in cases of this nature. In this treatise the legal position in South Africa is compared to that applicable in the Netherlands and in Canada in an attempt to see whether or not South Africa can learn something from these countries as far as the development of its own legal system, relating to euthanasia, is concerned. The Termination of End of Life Decisions and Assisted Suicide Act is applicable in the Netherlands and legalizes euthanasia and assisted suicide subject to strict requirements being complied with. Although euthanasia is illegal in Canada, the courts have recently shown a noteworthy human rights approach that almost resulted in the legal position in the province of British Columbia being changed. It will be submitted that South Africa must take thorough note of these two foreign legal systems, as well as of the recommendations of the South African Law Commission and the Bill of Rights, especially the rights to life, dignity, equality and freedom and security of the person.
- Full Text:
- Date Issued: 2013
- Authors: Welgemoed, Marc
- Date: 2013
- Subjects: Right to die -- Law and legislation -- South Africa Terminally ill -- Legal status, laws, etc. -- South Africa , Euthanasia -- South Africa Assisted suicide -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/45849 , vital:39222
- Description: Euthanasia and assisted suicide is currently illegal in South Africa and amounts to murder. Despite the fact that South Africa has a Constitution, including a Bill of Rights, as well as strong lobbying in favour of the legalization of euthanasia, no legal changes have been effected. Other issues closely intricated with euthanasia, like the so-called “living wills” and palliative care, where an increase of medication can possibly shorten the lifespan of a patient (“double-effect”-medication), are also problematic at the moment. The South African Law Commission has made recommendations regarding the legalization of euthanasia and assisted suicide, as well as the validity of living wills and “double-effect” palliative care practices as far back as 1997, but to present none of the recommendations had been adhered to. The only indication in favour of the toleration of euthanasia and assisted suicide is that the courts have handed down lenient sentences in cases of this nature. In this treatise the legal position in South Africa is compared to that applicable in the Netherlands and in Canada in an attempt to see whether or not South Africa can learn something from these countries as far as the development of its own legal system, relating to euthanasia, is concerned. The Termination of End of Life Decisions and Assisted Suicide Act is applicable in the Netherlands and legalizes euthanasia and assisted suicide subject to strict requirements being complied with. Although euthanasia is illegal in Canada, the courts have recently shown a noteworthy human rights approach that almost resulted in the legal position in the province of British Columbia being changed. It will be submitted that South Africa must take thorough note of these two foreign legal systems, as well as of the recommendations of the South African Law Commission and the Bill of Rights, especially the rights to life, dignity, equality and freedom and security of the person.
- Full Text:
- Date Issued: 2013
Strikes in the transport sector
- Authors: Grigor, Marius Hugo
- Date: 2013
- Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
- Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Marius Hugo
- Date: 2013
- Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
- Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
- Full Text:
- Date Issued: 2013
Help or hindrance? a critical analysis of the agreement on sanitary and phytosanitary measures, and its effects on developing countries
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017
Criminal and civil aspects of bribery
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
Equal pay for work of equal value
- Authors: Leo, Aloshea Doreen
- Date: 2019
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019
- Authors: Leo, Aloshea Doreen
- Date: 2019
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019