The legal consequences of failure to give effect to affirmative action measures
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
Accountability of armed opposition groups in Somalia
- Authors: Chingeni, Janet Chisomo
- Date: 2013
- Subjects: Armed Forces , Civil war -- Somalia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10294 , http://hdl.handle.net/10948/d1020779
- Description: The purpose of IHL is to protect civilians and provide obligations that parties to the conflict are to adhere to. These obligations in case of a non-international armed conflict emanate from Common Article 3, Additional Protocol II and customary international humanitarian law. The reason for the imposition of these obligations on the parties to the conflict is for the need to protect the civilian population against the effects of hostilities which mostly are women and children. As the conflict in Somalia has gone on for too long, IHL plays an important role in protecting civilians. As the Geneva Conventions regulate armed conflicts together with its Additional Protocols they set out the requirements for the treatment of those not taking part in hostilities. In direct contravention of the Geneva Conventions by the parties to the conflict, the persons not taking part in hostilities have been the victims of attacks by armed groups. Even though armed groups have obligations, breaches have continued to occur resulting in impunity and perpetrators of violence have gone unpunished and there is need to close the accountability gap in respect of holding armed groups accountable in Somalia. The aim of this research is to assess how armed groups in Somalia can be held accountable for the atrocities they have committed. In an attempt to close the gap the researcher discusses the obligations that armed groups have, and when these obligations are breached many result in criminal accountability in respect of war crimes. It is also stated in the research that a State has an obligation to prosecute those in breach of IHL obligations. For prosecution to be possible in Somalia there is need for the Federal government of Somalia to adopt new legislation to enforce the justice system in the attempt to hold armed groups accountable and where possible to also utilise available courts as it is difficult and expensive to establish a tribunal. To end impunity armed groups are to be held accountable.
- Full Text:
- Date Issued: 2013
- Authors: Chingeni, Janet Chisomo
- Date: 2013
- Subjects: Armed Forces , Civil war -- Somalia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10294 , http://hdl.handle.net/10948/d1020779
- Description: The purpose of IHL is to protect civilians and provide obligations that parties to the conflict are to adhere to. These obligations in case of a non-international armed conflict emanate from Common Article 3, Additional Protocol II and customary international humanitarian law. The reason for the imposition of these obligations on the parties to the conflict is for the need to protect the civilian population against the effects of hostilities which mostly are women and children. As the conflict in Somalia has gone on for too long, IHL plays an important role in protecting civilians. As the Geneva Conventions regulate armed conflicts together with its Additional Protocols they set out the requirements for the treatment of those not taking part in hostilities. In direct contravention of the Geneva Conventions by the parties to the conflict, the persons not taking part in hostilities have been the victims of attacks by armed groups. Even though armed groups have obligations, breaches have continued to occur resulting in impunity and perpetrators of violence have gone unpunished and there is need to close the accountability gap in respect of holding armed groups accountable in Somalia. The aim of this research is to assess how armed groups in Somalia can be held accountable for the atrocities they have committed. In an attempt to close the gap the researcher discusses the obligations that armed groups have, and when these obligations are breached many result in criminal accountability in respect of war crimes. It is also stated in the research that a State has an obligation to prosecute those in breach of IHL obligations. For prosecution to be possible in Somalia there is need for the Federal government of Somalia to adopt new legislation to enforce the justice system in the attempt to hold armed groups accountable and where possible to also utilise available courts as it is difficult and expensive to establish a tribunal. To end impunity armed groups are to be held accountable.
- Full Text:
- Date Issued: 2013
Human rights implications of the compulsory HIV/AIDS testing policy: a critical appraisal of the law and practice in South Africa, Uganda and Canada
- Authors: Chiringa, Kudakwashe E M
- Date: 2013
- Subjects: HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11106 , http://hdl.handle.net/10353/d1017298 , HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Description: HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.
- Full Text:
- Date Issued: 2013
- Authors: Chiringa, Kudakwashe E M
- Date: 2013
- Subjects: HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11106 , http://hdl.handle.net/10353/d1017298 , HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Description: HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.
- Full Text:
- Date Issued: 2013
The effect of labour legislation in the promotion and integration of persons with disabilities in the labour market
- Authors: Cole, Elsabe Cynthia
- Date: 2013
- Subjects: People with disabilities -- Legal status, laws, etc. -- South Africa , People with disabilities -- Employment , Labour market
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9300 , http://hdl.handle.net/10948/d1014669
- Description: It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.
- Full Text:
- Date Issued: 2013
- Authors: Cole, Elsabe Cynthia
- Date: 2013
- Subjects: People with disabilities -- Legal status, laws, etc. -- South Africa , People with disabilities -- Employment , Labour market
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9300 , http://hdl.handle.net/10948/d1014669
- Description: It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.
- Full Text:
- Date Issued: 2013
A comparative study on the effectiveness of minimum service agreements within the public service
- Authors: De Bruin, Frederik Johannes
- Date: 2013
- Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
- Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
- Full Text:
- Date Issued: 2013
- Authors: De Bruin, Frederik Johannes
- Date: 2013
- Subjects: Strikes and lockouts -- Public utilities , Collective labor agreements -- Service industries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10253 , http://hdl.handle.net/10948/d1020811
- Description: The principle of the right to strike is Internationally recognised. Although the right to strike is not set out explicitly in the International Labour Organizations (ILO) Conventions and Recommendations. It has been discussed on several occasions in the International Labour Conference during the course of preparatory work on instruments dealing with related topics, but for various reasons this has never given rise to international standards (Conventions or Recommendations) directly governing the right to strike. The ILO has determined that the right to strike can be derived from the right to Freedom of Association. The ILO Committee does however recognises certain limitations on the right to strike such as not finding any objection to national legislation that would prohibit the right to strike of armed or police forces. Both the Committee on Freedom of Association and the Committee of experts were also mindful, where public servants are concerned, that the recognition of the right to association of public servants in no way prejudges the question of the right of public servants to strike. The ILO also makes provision for the establishment of essential services as to ensure the continuation of services were the interruption of such would endanger the life, personal safety or health of the whole or part of the population. In this limitation it however holds that a “minimum safety service” may be imposed to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment In our Constitution, the supreme law of the Country, the right to strike is enshrined and protected in section 23 under the bill of rights. The Constitution however allows enabling legislation, under specific circumstances, to limit a right listed in section 23. The Labour Relations Act (LRA) places a limitation on the right to strike, specifically providing that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of these kind needs to be justified and, to be justified it needs, among other things, to be limited. In section 72 of the LRA provision is made for a minimum service within a designated essential service. Therefore, the ambit of the designated essential service is shrunk to the minimum service and those employees who were denied the right to strike while the broader essential service designation was in place, but who fall outside the defined minimum service, regains the right to strike. The concept of minimum services has however became a matter of regular discussion and debate. The concept of minimum services is not defined to the letter but it is regarded as the minimum service an industry or workplace would require as to ensure interruption of services would not endanger the life, personal safety or health of the whole or part of the population. Our legislatures have also been grappling with the concept of essential and minimum services. They have developed a comprehensive set of amendments trying to address some of the concerns in the composition, powers and functions of the Essential Services Committee (ESC). It is debatable if these proposed amendments would bring forth the necessary change to address these concerns or just become a further bureaucratic hindrance and due to the extreme complexity may even pose a limitation on the right to strike. There is also no differentiation made in the current labour legislation and the proposed amendments, between the public service and the private sector in application of the principle of essential and minimum services. Implementation of these principles in the public services has shown to be extremely challenging. Part of the proposed amendments however makes provision for the specific inclusion of government in the composition of the ESC. It is viewed by the drafters, that the introduction of government nominees to be an innovation to ensure that government is adequately represented on the essential services committee in its capacity as an employer, as a high proportion of essential service matters occur within the public service. This may be viewed as contrary to International standards as the ILO makes clear provision for a differentiated interpretation of the right to freedom of association, the right to strike, essential services and minimum services for people performing functions in the name of the State (public servants). The concept of public servant varies considerably from one country to another. Germany within their governance structure makes provision for a differentiation between civil servants and public servants and the labour rights the two groups may have. In France the military, police and prison services does not have the right to strike. In India public service employees have very limited organising and collective bargaining rights. In Brazil the police and the military do not have the right to strike and there are no legal provisions concerning the right to strike for civil servants. This is in strong contrast with the South African model. The South African Constitution and National Legislation does not allow for a differentiation in the application of labour legislation in the public service and the private sector. The application of the principles of labour relations and more specifically that of the right to strike and the determination of essential services must differ in the public services from that of the private sector. The public service is unique in that when workers in strike action it is not a purely defined labour process between an employer and employees but the public at large becomes a third player within the process. When public servants engage in industrial action they do not only deprive the community of certain rights, but indirectly deprive themselves from the same rights. There has been a resistant fear to implement the provisions of minimum services within the designated essential services within the public service, mainly because of the challenges in conceptualization of the practical implementation of the same. The environment created by the LRA does not specifically provide for the unique circumstances of the public service. The right to strike is a fundamental right for workers and therefore public servants won’t forfeit such. There is a recognition that the State needs to deliver services which will necessitate the application of the principle of essential services. However the answer will be in how minimum services is determined within these essential services. An answer that may not necessarily be contained within the Labour Relations Act.
- Full Text:
- Date Issued: 2013
Aspects of constructive dismissal
- Authors: Diedericks, Shaun Sylvester
- Date: 2013
- Subjects: Labor courts , Employees -- Dismissal of
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10269 , http://hdl.handle.net/10948/d1011641 , Labor courts , Employees -- Dismissal of
- Description: Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.
- Full Text:
- Date Issued: 2013
- Authors: Diedericks, Shaun Sylvester
- Date: 2013
- Subjects: Labor courts , Employees -- Dismissal of
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10269 , http://hdl.handle.net/10948/d1011641 , Labor courts , Employees -- Dismissal of
- Description: Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.
- Full Text:
- Date Issued: 2013
The impact of minimum sentence legislation on South African criminal law
- Authors: Du Plessis, Jan Andriaan
- Date: 2013
- Subjects: Sentences (Criminal procedure) -- South Africa , Capital punishment -- South Africa , Human rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10182 , http://hdl.handle.net/10948/d1020037x
- Description: The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
- Full Text:
- Date Issued: 2013
- Authors: Du Plessis, Jan Andriaan
- Date: 2013
- Subjects: Sentences (Criminal procedure) -- South Africa , Capital punishment -- South Africa , Human rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10182 , http://hdl.handle.net/10948/d1020037x
- Description: The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.
- Full Text:
- Date Issued: 2013
The criterion of justifiability as a ground for review following Sidumo v Rustenburg Platinum Mines (2007) 12 BLLR 1097 (CC)
- Fischat, Herbert Robert James Falconer
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
The legal protection of temporary employees
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
The Rotterdam Rules : a South African perspective
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
Suspension in the disciplinary process
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- 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
A critical analysis of the deductibility of audit fees
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013
The violence of language : contemporary hate speech and the suitability of legal measures regulating hate speech in South Africa
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
- Full Text:
- Date Issued: 2013
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
- Full Text:
- Date Issued: 2013
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
The employment relationship of employees employed in terms of section 56 and 57 in the local government sector
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
Misconduct relating to fraud and corruption in the public service
- Authors: Madikane, Mpumelelo Patrick
- Date: 2013
- Subjects: Civil service -- South Africa , Civil service -- Corrupt practices
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10274 , http://hdl.handle.net/10948/d1018673
- Description: In an article, “Corruption and Governance Challenges: The South African Experience”,1 the Public Protector commented that corruption and good governance sit at the opposite ends of the spectrum. While good governance represents the ideal for governments, corporations and nations globally, corruption is a scourge that decent people, organisations and governments seek to eradicate. In the simplest of terms, corruption involves the abuse of power for private gain.The Public Protector further stated that it should be a concern to everybody that in post-independence Africa, certainly in South Africa, the accumulation of riches (in most cases, very sudden) is venerated even in the absence of visible means of accumulating the riches. South Africa has battled with corruption since the days of apartheid. Post-apartheid South Africa is a more open society and more opportunities have been created for detecting, exposing and prosecuting corruption. South Africa‟s approach to corruption is multipronged. The main pillars according to the Public Protector are the law, anti-corruption agencies, and public mobilisation.This studyhas attempted to attend to the challenges of managing misconduct relating to fraud and corruption that appear to weaken our democracy. Fraud and corruption is a complex phenomenon that requires managers and supervisors to possess a specialist technical knowledge in order to be effective in punishing those that are involved in this type of misconduct. The tendency currently is for the managers and supervisors to place suspected corrupt employees on a prolonged pre-cautionary suspension for a period that is not supported by law. This of course weakens the employer‟s case as they tend to rely on the outcomes of the proceedings in the criminal procedure before they institute disciplinary action against such culprits. Workers could be criminally prosecuted for this type of misconduct in terms of the provisions of the Prevention and Combating of the Corrupt Activities Act. Employers always enjoy the right to criminally prosecute workers who have committed acts of fraud or corruption but that must go concurrently with the institution of the disciplinary proceedings in terms of the collective agreement, if there is any. This study will show that the act of misconduct relating to fraud and corruption is a complex phenomenon that poses a threat to the global security. This study also takes a closer view of the provisions of international instruments and institutions such as the United Nations and International Labour Organisation. It further, does a detailed analysis of the provisions in other foreign jurisdiction like Canada. This is consistent with the provisions of the Bill of Rights as enshrined in the Constitution:Section 39(1) of the Constitution of the Republic of South Africa demands that when interpreting the Bill of Rights, a court, tribunal or forum: a. Must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. Must consider international law; and c. May consider foreign law. Section 1 of the Labour Relations Act, states that the primary objects of the Act are: (a) To give effect and regulate the fundamental rights conferred by section 23 of the Constitution; (b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Section 3 of the LRA further stipulates that any person applying this Act must interpret its provisions:(a) To give effect to its primary objects; (b) in compliance with the Constitution; (c) in compliance with the public international law obligations of the Republic.This treatise further shows the importance of the Constitutional values and principles that govern the Public Administration in terms of Chapter 10, section 195.Of importance the elements of fraud and corruption are discussed in this study.This study also gives a detailed analysis of the case laws that give guidance on how best to deal with and successfully punish employees involved in misconduct relating to fraud and corruption.
- Full Text:
- Date Issued: 2013
- Authors: Madikane, Mpumelelo Patrick
- Date: 2013
- Subjects: Civil service -- South Africa , Civil service -- Corrupt practices
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10274 , http://hdl.handle.net/10948/d1018673
- Description: In an article, “Corruption and Governance Challenges: The South African Experience”,1 the Public Protector commented that corruption and good governance sit at the opposite ends of the spectrum. While good governance represents the ideal for governments, corporations and nations globally, corruption is a scourge that decent people, organisations and governments seek to eradicate. In the simplest of terms, corruption involves the abuse of power for private gain.The Public Protector further stated that it should be a concern to everybody that in post-independence Africa, certainly in South Africa, the accumulation of riches (in most cases, very sudden) is venerated even in the absence of visible means of accumulating the riches. South Africa has battled with corruption since the days of apartheid. Post-apartheid South Africa is a more open society and more opportunities have been created for detecting, exposing and prosecuting corruption. South Africa‟s approach to corruption is multipronged. The main pillars according to the Public Protector are the law, anti-corruption agencies, and public mobilisation.This studyhas attempted to attend to the challenges of managing misconduct relating to fraud and corruption that appear to weaken our democracy. Fraud and corruption is a complex phenomenon that requires managers and supervisors to possess a specialist technical knowledge in order to be effective in punishing those that are involved in this type of misconduct. The tendency currently is for the managers and supervisors to place suspected corrupt employees on a prolonged pre-cautionary suspension for a period that is not supported by law. This of course weakens the employer‟s case as they tend to rely on the outcomes of the proceedings in the criminal procedure before they institute disciplinary action against such culprits. Workers could be criminally prosecuted for this type of misconduct in terms of the provisions of the Prevention and Combating of the Corrupt Activities Act. Employers always enjoy the right to criminally prosecute workers who have committed acts of fraud or corruption but that must go concurrently with the institution of the disciplinary proceedings in terms of the collective agreement, if there is any. This study will show that the act of misconduct relating to fraud and corruption is a complex phenomenon that poses a threat to the global security. This study also takes a closer view of the provisions of international instruments and institutions such as the United Nations and International Labour Organisation. It further, does a detailed analysis of the provisions in other foreign jurisdiction like Canada. This is consistent with the provisions of the Bill of Rights as enshrined in the Constitution:Section 39(1) of the Constitution of the Republic of South Africa demands that when interpreting the Bill of Rights, a court, tribunal or forum: a. Must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. Must consider international law; and c. May consider foreign law. Section 1 of the Labour Relations Act, states that the primary objects of the Act are: (a) To give effect and regulate the fundamental rights conferred by section 23 of the Constitution; (b) To give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Section 3 of the LRA further stipulates that any person applying this Act must interpret its provisions:(a) To give effect to its primary objects; (b) in compliance with the Constitution; (c) in compliance with the public international law obligations of the Republic.This treatise further shows the importance of the Constitutional values and principles that govern the Public Administration in terms of Chapter 10, section 195.Of importance the elements of fraud and corruption are discussed in this study.This study also gives a detailed analysis of the case laws that give guidance on how best to deal with and successfully punish employees involved in misconduct relating to fraud and corruption.
- Full Text:
- Date Issued: 2013
The onus of proof and presumption of innocence in South African bail jurisprudence
- Authors: Makasana, Velile
- Date: 2013
- Subjects: Criminal procedure -- South Africa , Bail -- South Africa , Detention of persons -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10186 , http://hdl.handle.net/10948/d1020911
- Description: The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.
- Full Text:
- Date Issued: 2013
- Authors: Makasana, Velile
- Date: 2013
- Subjects: Criminal procedure -- South Africa , Bail -- South Africa , Detention of persons -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10186 , http://hdl.handle.net/10948/d1020911
- Description: The South African criminal justice process is such that there is an inevitable lapse of time between the arrest of the offender and his or her subsequent trial. The pre-trial incarceration presents a special problem. Between the arrest of the accused and release, the accused is being deprived of his or her liberty in circumstances where no court of law has pronounced him or her guilty. The right to bail is well entrenched in South African criminal justice system both in the Constitution Act and Criminal Procedure Act. Bail is always in the form of contract between the State and the accused, even though at times it may be opposed by the State. In the past the legal position based on the case law was that the presumption of innocence in bail proceedings operated in favour of the applicant even where it was said that there was a strong prima facie case against him or her. This position has slightly changed in that the courts in bail applications are not concerned with guilt, but that of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The onus of proof in bail applications, other than Schedule 5 and 6 offences is borne by the State. Where Schedule 5 or 6 is applicable the onus is on the applicant. There are different requirements between schedule 5 and 6 that must be met by the applicant before release on bail is granted. In Schedule 5 offences the bail applicant must satisfy the court that the interests of justice permit his or her release. In determining whether the interests of justice permit the release of a particular applicant on bail, the courts are guided by the provisions of section 60(4) to (9) inclusive of section (11B)(c) of the Criminal Procedure Act. In such determination the courts must also take into account of section 60(60)(a) to (g) of the Criminal Procedure Act. In Schedule 6 offences there are two requirements namely: the exceptional circumstances and the interests of justice. The term “exceptional circumstances” does not have a closed definition. Both requirements must be established by means of written or oral evidence to the satisfaction of the court before bail may be granted. As pointed out above, the State may still oppose the release on bail of the applicant. It is now accepted in bail applications that ordinary circumstances may in particular context be blended with exceptional or unusual elements. In such cases the court is expected to apply its independent evaluation of evidence in order to determine whether the exceptional circumstances in the interests of justice permit the release on bail. Similarly to the South African bail jurisprudence the Rome Statute of the International Criminal Court recognises a right of the arrested person to apply for the interim release. It also recognises the need to establish exceptional circumstances for such release. The South African bail jurisprudence recognises the right to bail, and places reasonable and procedural limitations founded on the constitutional values and interests of justice. There are still practical challenges that need to be addressed as a results of the stringent requirements in section 60(11)(a) and (b) of the Criminal Procedure Act that relate to Schedule 5 and 6. It is therefore recommended that there is a need for the following: 1. Legislative intervention that will regulate and limit the time spent on investigations where bail has been refused. 2. Legislative intervention that will provide for an automatic review procedures in Schedule 5 or 6 offences where bail is refused on grounds that the interests of justice do not permit the release of the applicant on bail or for failure to prove exceptional circumstances. It is submitted that this may assist in reducing refusals of bail based on mistaken understanding of the law or facts or irregularities that may be prejudicial to the applicant or the administration of justice; or 3. Legislative intervention that will make it mandatory for a court that refuses to grant bail to reconsider its decision after a certain period in future provided that the trial has not been commenced with, in order to determine whether further incarceration is necessary or proportionate to the offence. It is submitted that this may assist the court to enquire into unreasonable delays on investigations or changed circumstances of the applicant in order to enable the court to reconsider its previous decision if necessary. This may further assist in offences where it is foreseeable that the trial court is likely to pass a partly or wholly suspended sentence in case of conviction. For example some cases fall within the scope of Schedule 5 by virtue of a previous conviction on Schedule 1 or release on bail on a Schedule 1 offence. The above recommendations may directly or indirectly contribute in balancing the scales of justice during the bail proceedings and its aftermath. These may contribute to the reduction of high numbers of the in custody awaiting trial prisoners while not compromising the current bail procedures.
- Full Text:
- Date Issued: 2013
The criminalization of HIV/AIDS : a comparative analysis
- Authors: Myburgh, Rene
- Date: 2013
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sexually transmitted diseases -- Law and legislation -- South Africa. , HIV-positive persons -- Legal status, laws, etc. -- South Africa , Liability (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10185 , http://hdl.handle.net/10948/d1020754
- Description: The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.
- Full Text:
- Date Issued: 2013
- Authors: Myburgh, Rene
- Date: 2013
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sexually transmitted diseases -- Law and legislation -- South Africa. , HIV-positive persons -- Legal status, laws, etc. -- South Africa , Liability (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10185 , http://hdl.handle.net/10948/d1020754
- Description: The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.
- Full Text:
- Date Issued: 2013