The adoption of a police and judicial co-operation regime for the African Union
- Authors: Fazekas, Boglar
- Date: 2015
- Subjects: Law enforcement -- Africa , Judicial assistance -- Africa , Criminal justice, Administration of -- Africa , Crime prevention -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4440 , vital:20601
- Description: In 1991 the Treaty enacting the African Economic Community (AEC)1 was signed by the African Heads of State and Government.2 The AEC aims to establish regional free markets that would then be transformed into a continent-wide single market in six subsequent stages enabling the free movement of persons, goods, services, and capital until 2025 at the latest.3 However, to make sure that the free movement of persons in Africa would not also become a "free flow of criminals", the installation of a common market will require intensified police and judicial co-operation, information exchange and external border controls. 1 Treaty Establishing the African Economic Community adopted by the Heads of State and Government of Member States of the Organisation of African Unity in Abuja, Nigeria, 3 June 1991. 2 Art. 6(1) Treaty Establishing the African Economic Community. 3 Arts. 4(2)(h) and 4(2)(i) Treaty Establishing the African Economic Community. Furthermore, the age of globalisation calls into question the traditional concepts of sovereignty. Nowadays individual states are often unable to supervise their complete territory and battle to guard their borders against unwanted goods, people and ideas. Many facets of globalisation - including fast technological development and social and economic interaction - encourage governments to cooperate in order to try to achieve objectives that, acting on their own, they may not believe they can accomplish. Or to express the same thought in its negative sense: to fight unwanted consequences of this development, acting on their own, the states may not be able to achieve. This means that sooner or later the African States will have to address the problem of how to develop a police and judicial regime in criminal matters in order to fight against organised transnational crime. The question therefore is not whether the African States should engage in police and judicial co-operation, but rather what form it should take. The aim of this master treatise is to define the cornerstones of a possible future adoption of a police and judicial regime for the African Union (AU). There are numerous police and judicial co-operations around the world of various types so to make the task more manageable this treaty looks at the European Union (EU) in some detail and uses it as an example or as a guideline to sketch out a possible development of a police and judicial co-operation within the AU. This is for the reason that the EU has succeeded in creating a sophisticated regime of police and judicial co-operation and thus serves as a model of how co-operation levels can be created, handled, and preserved. The EU also serves as an example of how certain obstacles can make co-operation difficult or even prevent efforts for an effective transnational police and judicial co-operation. However, the current EU is the result of the specific circumstances in which its Member States and organs have responded to the economic and political changes they have been faced with. The AU has to operate amidst a political setting and various other circumstances that are very different. As a result the police and judicial co-operation regime of the AU will be very different from the EU model. This treatise argues that due to the vast number of participating states in the AU and the AU's decision-making practice, the continental level is not an appropriate point of departure for the AU to adopt a police and judicial co-operation regime. Police and judicial co-operation within the AU will at first have to be pursued at a sub-regional level. The co-operation should start at the already subdivided Regional Economic Communities (RECs) established by the AEC. Only in time, if at all, will the sub-regional markets be prepared to merge into a continent-wide integration. This is why at the present time the AU will have to accept a mere supervising and stimulating part in pursuing the ultimate objective of developing a police and judicial co-operation on a continent-wide level. Furthermore, this treatise assesses that the huge number of economic, social, and political challenges impair the AU's action ability with the result that it will not be able to establish a supranational legal body comparable to that of the EU in the near future. Also, the African Heads of State and Government are too interested in keeping their sovereign powers to themselves. This is why in Africa integration is more likely to be achieved with an intergovernmental approach. Therefore, police and judicial co-operation should first be exercised by means of informal meetings of the Interior and Justice Ministers and any resulting acts should be classified as (traditional) public international law. This is not to imply that the AU has no role to play here, for said meetings will have to be coordinated and supervised. In order to do justice to its supervising role it is necessary to empower the organs of the AU. This treatise analyses that for the AU to establish an efficient institutional framework, it is extremely important that the Assembly's monopoly over proposing legislation and establishing new organs is changed. Consensus decisions between fifty-four Member States would in an optimal case be replaced by a system where no organ is in total control. Finally, this treatise emphasises the necessity to push ahead with the development of the regional free markets as envisioned by the AEC. Similar to the development in the EU, this will bring about new challenges in combating new types of transnational crimes. This treatise demonstrates that this challenge might bring the necessary momentum to formally introduce police and judicial co-operation in criminal matters, usually a high policy area, on the agenda of the AU. In conclusion, this treatise shows that co-operation in such a sensitive area as security policy first and foremost needs a sufficient amount of trust between the decision makers of the involved states. To develop this necessary trust and the processes building upon this, this treatise argues that a regular meeting between the Interior and Justice Ministers, either inside or outside the framework of the AU, should be launched. Through these meetings the AU could gradually develop a platform for discussion in the area of criminal law and thereby slowly intensify its information exchange and operational co-operation. The history of the EU has shown that the development of a supranational legal system first and foremost requires mutual trust in each other's respective legal systems. Trust is generated by communication in an informal atmosphere. Therefore, this treatise argues that a colloquial intergovernmental co-operation within the field of criminal law is the correct approach for the AU to develop a police and judicial co-operation in criminal matters.
- Full Text:
- Date Issued: 2015
- Authors: Fazekas, Boglar
- Date: 2015
- Subjects: Law enforcement -- Africa , Judicial assistance -- Africa , Criminal justice, Administration of -- Africa , Crime prevention -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4440 , vital:20601
- Description: In 1991 the Treaty enacting the African Economic Community (AEC)1 was signed by the African Heads of State and Government.2 The AEC aims to establish regional free markets that would then be transformed into a continent-wide single market in six subsequent stages enabling the free movement of persons, goods, services, and capital until 2025 at the latest.3 However, to make sure that the free movement of persons in Africa would not also become a "free flow of criminals", the installation of a common market will require intensified police and judicial co-operation, information exchange and external border controls. 1 Treaty Establishing the African Economic Community adopted by the Heads of State and Government of Member States of the Organisation of African Unity in Abuja, Nigeria, 3 June 1991. 2 Art. 6(1) Treaty Establishing the African Economic Community. 3 Arts. 4(2)(h) and 4(2)(i) Treaty Establishing the African Economic Community. Furthermore, the age of globalisation calls into question the traditional concepts of sovereignty. Nowadays individual states are often unable to supervise their complete territory and battle to guard their borders against unwanted goods, people and ideas. Many facets of globalisation - including fast technological development and social and economic interaction - encourage governments to cooperate in order to try to achieve objectives that, acting on their own, they may not believe they can accomplish. Or to express the same thought in its negative sense: to fight unwanted consequences of this development, acting on their own, the states may not be able to achieve. This means that sooner or later the African States will have to address the problem of how to develop a police and judicial regime in criminal matters in order to fight against organised transnational crime. The question therefore is not whether the African States should engage in police and judicial co-operation, but rather what form it should take. The aim of this master treatise is to define the cornerstones of a possible future adoption of a police and judicial regime for the African Union (AU). There are numerous police and judicial co-operations around the world of various types so to make the task more manageable this treaty looks at the European Union (EU) in some detail and uses it as an example or as a guideline to sketch out a possible development of a police and judicial co-operation within the AU. This is for the reason that the EU has succeeded in creating a sophisticated regime of police and judicial co-operation and thus serves as a model of how co-operation levels can be created, handled, and preserved. The EU also serves as an example of how certain obstacles can make co-operation difficult or even prevent efforts for an effective transnational police and judicial co-operation. However, the current EU is the result of the specific circumstances in which its Member States and organs have responded to the economic and political changes they have been faced with. The AU has to operate amidst a political setting and various other circumstances that are very different. As a result the police and judicial co-operation regime of the AU will be very different from the EU model. This treatise argues that due to the vast number of participating states in the AU and the AU's decision-making practice, the continental level is not an appropriate point of departure for the AU to adopt a police and judicial co-operation regime. Police and judicial co-operation within the AU will at first have to be pursued at a sub-regional level. The co-operation should start at the already subdivided Regional Economic Communities (RECs) established by the AEC. Only in time, if at all, will the sub-regional markets be prepared to merge into a continent-wide integration. This is why at the present time the AU will have to accept a mere supervising and stimulating part in pursuing the ultimate objective of developing a police and judicial co-operation on a continent-wide level. Furthermore, this treatise assesses that the huge number of economic, social, and political challenges impair the AU's action ability with the result that it will not be able to establish a supranational legal body comparable to that of the EU in the near future. Also, the African Heads of State and Government are too interested in keeping their sovereign powers to themselves. This is why in Africa integration is more likely to be achieved with an intergovernmental approach. Therefore, police and judicial co-operation should first be exercised by means of informal meetings of the Interior and Justice Ministers and any resulting acts should be classified as (traditional) public international law. This is not to imply that the AU has no role to play here, for said meetings will have to be coordinated and supervised. In order to do justice to its supervising role it is necessary to empower the organs of the AU. This treatise analyses that for the AU to establish an efficient institutional framework, it is extremely important that the Assembly's monopoly over proposing legislation and establishing new organs is changed. Consensus decisions between fifty-four Member States would in an optimal case be replaced by a system where no organ is in total control. Finally, this treatise emphasises the necessity to push ahead with the development of the regional free markets as envisioned by the AEC. Similar to the development in the EU, this will bring about new challenges in combating new types of transnational crimes. This treatise demonstrates that this challenge might bring the necessary momentum to formally introduce police and judicial co-operation in criminal matters, usually a high policy area, on the agenda of the AU. In conclusion, this treatise shows that co-operation in such a sensitive area as security policy first and foremost needs a sufficient amount of trust between the decision makers of the involved states. To develop this necessary trust and the processes building upon this, this treatise argues that a regular meeting between the Interior and Justice Ministers, either inside or outside the framework of the AU, should be launched. Through these meetings the AU could gradually develop a platform for discussion in the area of criminal law and thereby slowly intensify its information exchange and operational co-operation. The history of the EU has shown that the development of a supranational legal system first and foremost requires mutual trust in each other's respective legal systems. Trust is generated by communication in an informal atmosphere. Therefore, this treatise argues that a colloquial intergovernmental co-operation within the field of criminal law is the correct approach for the AU to develop a police and judicial co-operation in criminal matters.
- Full Text:
- Date Issued: 2015
The constitutionality of section 32 of the Labour Relations Act
- Authors: Hemsley, Michael Norman
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa Labor unions -- South Africa Collective bargaining -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11070 , vital:26882
- Description: Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.
- Full Text:
- Date Issued: 2015
- Authors: Hemsley, Michael Norman
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa Labor unions -- South Africa Collective bargaining -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11070 , vital:26882
- Description: Collective bargaining is the process whereby employees act as a collective unit whilst negotiating terms and conditions of employment with employers. The collective unit typically takes the form of a trade union, mandated by its members to negotiate on their behalf. By negotiating collectively the inherent imbalance of power between employer and individual employee is seen to be neutralised. The process of collective bargaining enjoys legal status in South Africa and around the world. The Industrial Conciliation Act of 1924 institutionalised collective bargaining for the first time in the form of the Industrial-Council system. This sectoral bargaining system stood firm throughout the pre-democracy period but initially excluded non-white employees. Industrial unrest in the 1970s was the catalyst for the Wiehan commission which ultimately brought all employees into the fold. By the dawn of democracy in South Africa the bargaining system enjoyed wide-spread support and legitimacy. This was particularly so amongst the COSATU-led labour movement which enjoyed a position of political strength. This support and strength were reflected in the contents of both the Labour Relations Act and the Constitution which enshrined the constitutional right to engage in collective bargaining. Possibly the most debated aspect of the Council system has been the question of extending agreements to non-parties. Those in favour argue that the Council system cannot function in the absence of extensions. This is so because what would then effectively be a voluntary system would not attract sufficient volunteers. Those against argue that extensions act as a barrier to economic activity, particularly for small and new businesses. Legislation has, since 1924, facilitated the extension of agreements as long as certain criteria are met. Section 32 of the Labour Relations Act is the current extension vehicle. The extension criteria have vacillated over time and especially so in recent history with section 32 being subject to change in every post-democracy amendment to the Act. Possibly the most serious challenge to the extension status quo has come in the form of a constitutional challenge by the Free-Market Foundation. The Foundation advances old economic arguments but links these to an alleged impingement of constitutional rights. The challenge comes at a time when the country is experiencing the most significant socio-political turbulence since democracy. This includes the most enduring strike in our history, a landmark-employer lock-out and a parliamentary facelift. The Metal and Engineering Industries Bargaining Council oversees the biggest manufacturing sector in the South African economy. This status prompted the Council to submit its own responding papers in the Free-Market case. Particularly fascinating is that an employer party to the Council not only supports the Foundation case but has also lodged its own proceedings against the extension of the 2014 Engineering agreement. Both these cases are still pending and the outcomes have the potential to transform the political and economic landscape of our country.
- Full Text:
- Date Issued: 2015
The position of asylum seekers in South African social security law
- Authors: Gugwana, Monde Barrington
- Date: 2015
- Subjects: Asylum, Right of -- South Africa , Social security -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6159 , vital:21044
- Description: The legal position of asylum seekers in South African social security system is more nuanced as a result of their transitional stay or status in the country. Asylum seekers may often be present in South Africa for a quite a long time but their social security entitlement is more restricted, and similar to that of temporary residents. For example, asylum seekers’ social security position is completely different from that of refugees. Refugees enjoy the same social security treatment similarly to South African citizens and permanent residents. Refugees qualify for the constitutionally entrenched right to have access to social security, including appropriate social assistance. Refugees also qualify for other socio-economic rights contained in the Constitution of the Republic of South Africa, 1996. The exclusion of asylum seekers occurs despite the fact they are one of the vulnerable groups of noncitizens. Such exclusion forces asylum seekers to live under precarious conditions. It is fundamentally accepted that the drafters of the Constitution included the right to have access to social security, in order to ensure that everyone, irrespective of nationality and citizenship enjoys an acceptable standard of living. It is also fundamentally accepted that the right to have access to social security contained in section 27(1)(c) is limited by section 27(2) of the Constitution. Section 27(2) requires the State to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The South African courts had on several occasions confirmed that the content of section 27(1)(c) is limited by section 27(2) of the Constitution and that the state cannot implement the right to have access to social security on demand. It had also been confirmed that the right to have access to social security is enforceable. This means the beneficiaries of this right may seek recourse from the courts of law when they are not satisfied about the progress relating to the implementation of the programmes relevant to the right to have access to social security. The right to have access to social security is also limited by section 36(1) of the Constitution. In the international arena, the right to have access to social security is recognised as the entitlement of everyone, but in some instances differential treatment can be made by the states. Such differential treatment should serve the legitimate state objective and all noncitizens should be treated equally.
- Full Text:
- Date Issued: 2015
- Authors: Gugwana, Monde Barrington
- Date: 2015
- Subjects: Asylum, Right of -- South Africa , Social security -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6159 , vital:21044
- Description: The legal position of asylum seekers in South African social security system is more nuanced as a result of their transitional stay or status in the country. Asylum seekers may often be present in South Africa for a quite a long time but their social security entitlement is more restricted, and similar to that of temporary residents. For example, asylum seekers’ social security position is completely different from that of refugees. Refugees enjoy the same social security treatment similarly to South African citizens and permanent residents. Refugees qualify for the constitutionally entrenched right to have access to social security, including appropriate social assistance. Refugees also qualify for other socio-economic rights contained in the Constitution of the Republic of South Africa, 1996. The exclusion of asylum seekers occurs despite the fact they are one of the vulnerable groups of noncitizens. Such exclusion forces asylum seekers to live under precarious conditions. It is fundamentally accepted that the drafters of the Constitution included the right to have access to social security, in order to ensure that everyone, irrespective of nationality and citizenship enjoys an acceptable standard of living. It is also fundamentally accepted that the right to have access to social security contained in section 27(1)(c) is limited by section 27(2) of the Constitution. Section 27(2) requires the State to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The South African courts had on several occasions confirmed that the content of section 27(1)(c) is limited by section 27(2) of the Constitution and that the state cannot implement the right to have access to social security on demand. It had also been confirmed that the right to have access to social security is enforceable. This means the beneficiaries of this right may seek recourse from the courts of law when they are not satisfied about the progress relating to the implementation of the programmes relevant to the right to have access to social security. The right to have access to social security is also limited by section 36(1) of the Constitution. In the international arena, the right to have access to social security is recognised as the entitlement of everyone, but in some instances differential treatment can be made by the states. Such differential treatment should serve the legitimate state objective and all noncitizens should be treated equally.
- Full Text:
- Date Issued: 2015
The programmatic enforcement of affirmative action
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
The regulation of agricultural subsidies in the World Trade Organization framework : a developing country perspective
- Authors: Chigavazira, Farai
- Date: 2015
- Subjects: Foreign trade regulation -- Developing countries Agricultural laws and legislation -- Developing countries Tariff on farm produce -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/1874 , vital:27569
- Description: The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.
- Full Text:
- Date Issued: 2015
- Authors: Chigavazira, Farai
- Date: 2015
- Subjects: Foreign trade regulation -- Developing countries Agricultural laws and legislation -- Developing countries Tariff on farm produce -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/1874 , vital:27569
- Description: The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.
- Full Text:
- Date Issued: 2015
The requirement of "bumping" in operational-requirement dismissals
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
- Authors: Strydom, Wynand Wilhelmus
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5896 , vital:21009
- Description: This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
- Full Text:
- Date Issued: 2015
The substantive and procedural limitations on the constitutional right to strike
- Authors: Gathongo, Johana Kambo
- Date: 2015
- Subjects: Strikes and lockouts -- South Africa , Civil rights -- South Africa , Employee rules -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9254 , http://hdl.handle.net/10948/d1021205
- Description: This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.
- Full Text:
- Date Issued: 2015
- Authors: Gathongo, Johana Kambo
- Date: 2015
- Subjects: Strikes and lockouts -- South Africa , Civil rights -- South Africa , Employee rules -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9254 , http://hdl.handle.net/10948/d1021205
- Description: This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.
- Full Text:
- Date Issued: 2015
The unfair labour practice relating to benefits
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
Unfair discrimination in recruitment practices
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
Unfair labour practice relating to promotion in the public education sector
- Authors: Tsheko, Toto
- Date: 2015
- Subjects: Unfair labor practices , Mediation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6050 , vital:21034
- Description: This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.
- Full Text:
- Date Issued: 2015
- Authors: Tsheko, Toto
- Date: 2015
- Subjects: Unfair labor practices , Mediation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6050 , vital:21034
- Description: This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.
- Full Text:
- Date Issued: 2015
A review of the collective bargaining system in the public service with specific reference to the general public service sector bargaining council (GPSSBC)
- Authors: Oodit, Sharlaine
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Public service employment , Labor unions -- South Africa , Labor movement -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10296 , http://hdl.handle.net/10948/d1021029
- Description: ollective bargaining continues to play a prominent role in shaping employment relations in South Africa, without which the individual worker is powerless and in a weaker bargaining position against his employer. Collective bargaining can be described as an interactive process that resolves disputes between the employer and employee. In South Africa the advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. Therefore in examining the history of collective bargaining in South Africa it is necessary to reflect on the state of labour relations prior and post the 1994 democratic elections. The study provides an overview of the practices and processes of public service collective bargaining in the old and new public service. The public sector accounts for a very significant proportion of employment in all countries around the globe, South Africa is no exception. Although the state as employer is in a stronger position than its private sector counterpart, the public employee is potentially also in a stronger position than its private sector counterpart. A defining characteristic of most government activity and services is that they are the ones available to the public. This means that industrial action which disrupts such services has a very significant impact on the public, serving as a substantial leverage in collective bargaining. The bargaining councils in the public sector which ensure the effectiveness of collective bargaining are maintained, are examined to provide a comprehensive understanding of the workings of these institutions. Some of the gains and challenges are also explored to provide a holistic picture of state of collective bargaining in public service. A comparison of countries seeks to analyse and compare globally the developments of collective bargaining in public administrations. The different political systems around the world have developed various labour relations processes in the public service, an examination of the approaches and mechanisms provides alternative ways of doing things. Recommendations are made regarding the changes that need to be made, as well as matters, which need to be analysed and examined further.
- Full Text:
- Date Issued: 2014
- Authors: Oodit, Sharlaine
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Public service employment , Labor unions -- South Africa , Labor movement -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10296 , http://hdl.handle.net/10948/d1021029
- Description: ollective bargaining continues to play a prominent role in shaping employment relations in South Africa, without which the individual worker is powerless and in a weaker bargaining position against his employer. Collective bargaining can be described as an interactive process that resolves disputes between the employer and employee. In South Africa the advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. Therefore in examining the history of collective bargaining in South Africa it is necessary to reflect on the state of labour relations prior and post the 1994 democratic elections. The study provides an overview of the practices and processes of public service collective bargaining in the old and new public service. The public sector accounts for a very significant proportion of employment in all countries around the globe, South Africa is no exception. Although the state as employer is in a stronger position than its private sector counterpart, the public employee is potentially also in a stronger position than its private sector counterpart. A defining characteristic of most government activity and services is that they are the ones available to the public. This means that industrial action which disrupts such services has a very significant impact on the public, serving as a substantial leverage in collective bargaining. The bargaining councils in the public sector which ensure the effectiveness of collective bargaining are maintained, are examined to provide a comprehensive understanding of the workings of these institutions. Some of the gains and challenges are also explored to provide a holistic picture of state of collective bargaining in public service. A comparison of countries seeks to analyse and compare globally the developments of collective bargaining in public administrations. The different political systems around the world have developed various labour relations processes in the public service, an examination of the approaches and mechanisms provides alternative ways of doing things. Recommendations are made regarding the changes that need to be made, as well as matters, which need to be analysed and examined further.
- Full Text:
- Date Issued: 2014
An analysis of the proposed amendments to the Labour Relations Act and other employment legislation
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
- Authors: Moodaley, Antonio
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
- Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
- Full Text:
- Date Issued: 2014
Child justice: an analysis of the development of child justice reform in Botswana
- Isaacs, Nthabiseng Rosalind Bertha
- Authors: Isaacs, Nthabiseng Rosalind Bertha
- Date: 2014
- Subjects: Juvenile justice, Administration of -- Botswana , Criminals -- Rehabilitation -- Botswana , Children's rights -- Botswana
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10184 , http://hdl.handle.net/10948/d1020094
- Description: This dissertation addresses the developments of child justice in Botswana. The first ever child justice that was established is discussed with the aim to understand the influence it had on Botswana with regard to the nature of the proceedings and the founding principles of child justice and its application in the courts. International Conventions that have a bearing on the rights of children in Botswana, such as the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention of Juvenile Delinquency and the African Charter on the Rights and Welfare of the Child are discussed. The measures that are currently in place for the protection of children who are in conflict with the law are examined with particular emphasis on those children that are arrested and detained. A comparison is drawn between the Children’s Act CAP [28:04] OF 1981, the Children’s Act 8 of 2009 and the South African Child Justice Act 75 of 2008 and the differences between the systems are highlighted. The provisions of the 2009 Act pertaining to children in conflict with the law are discussed in depth and shortfalls of the 2009 Children’s Act are identified. Diversion, as a form of correctional action, is discussed in light of international conventions. The provisions regarding the diversion of child offenders in the Child Justice Act are interrogated. Trial procedures under the 2009 Children’s Act are discussed and compared to those in South Africa including measures in place for the sentencing child offenders in both Botswana and South Africa. After an analysis of the international conventions, legislation and case law, the conclusion is reached that there is a commitment in Botswana towards the protectionand realization of children’s rights especially those who are in conflict with the law. It is recommended in the conclusions that Botswana import some provisions of the Child Justice Act into domestic legislation in order to comprehensively address the plight of children in trouble with the law so as to strive towards maximum compliance with conventions that Botswana has signed.
- Full Text:
- Date Issued: 2014
- Authors: Isaacs, Nthabiseng Rosalind Bertha
- Date: 2014
- Subjects: Juvenile justice, Administration of -- Botswana , Criminals -- Rehabilitation -- Botswana , Children's rights -- Botswana
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10184 , http://hdl.handle.net/10948/d1020094
- Description: This dissertation addresses the developments of child justice in Botswana. The first ever child justice that was established is discussed with the aim to understand the influence it had on Botswana with regard to the nature of the proceedings and the founding principles of child justice and its application in the courts. International Conventions that have a bearing on the rights of children in Botswana, such as the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention of Juvenile Delinquency and the African Charter on the Rights and Welfare of the Child are discussed. The measures that are currently in place for the protection of children who are in conflict with the law are examined with particular emphasis on those children that are arrested and detained. A comparison is drawn between the Children’s Act CAP [28:04] OF 1981, the Children’s Act 8 of 2009 and the South African Child Justice Act 75 of 2008 and the differences between the systems are highlighted. The provisions of the 2009 Act pertaining to children in conflict with the law are discussed in depth and shortfalls of the 2009 Children’s Act are identified. Diversion, as a form of correctional action, is discussed in light of international conventions. The provisions regarding the diversion of child offenders in the Child Justice Act are interrogated. Trial procedures under the 2009 Children’s Act are discussed and compared to those in South Africa including measures in place for the sentencing child offenders in both Botswana and South Africa. After an analysis of the international conventions, legislation and case law, the conclusion is reached that there is a commitment in Botswana towards the protectionand realization of children’s rights especially those who are in conflict with the law. It is recommended in the conclusions that Botswana import some provisions of the Child Justice Act into domestic legislation in order to comprehensively address the plight of children in trouble with the law so as to strive towards maximum compliance with conventions that Botswana has signed.
- Full Text:
- Date Issued: 2014
Director's duties under the Companies Act 71 of 2008
- Authors: van Tonder, Jan-Louis
- Date: 2014
- Subjects: South Africa -- Companies Act, 2008 Corporation law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47892 , vital:40397
- Description: This research focuses on an analysis of the prescribed standards of directors’ conduct provision. The thesis of the dissertation is to analyse what this provision introduces into statute. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004 the Department of Trade and Industry released a policy document entitled South African Company Law for the 21st Century Guidelines for Corporate Law Reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill and introduces the business judgment rule into South African company law. The research establishes what the standards of conduct are that are expected of directors and analyses the meaning of these duties in the standards of directors’ conduct provision. The research examines whether the duties introduced in the standards of conduct provision are aligned to the common law principles. It will consider whether the standards of conduct provision amends the common law principles, adds anything new or narrows the common law duties in its statutory format.
- Full Text:
- Date Issued: 2014
- Authors: van Tonder, Jan-Louis
- Date: 2014
- Subjects: South Africa -- Companies Act, 2008 Corporation law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47892 , vital:40397
- Description: This research focuses on an analysis of the prescribed standards of directors’ conduct provision. The thesis of the dissertation is to analyse what this provision introduces into statute. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004 the Department of Trade and Industry released a policy document entitled South African Company Law for the 21st Century Guidelines for Corporate Law Reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill and introduces the business judgment rule into South African company law. The research establishes what the standards of conduct are that are expected of directors and analyses the meaning of these duties in the standards of directors’ conduct provision. The research examines whether the duties introduced in the standards of conduct provision are aligned to the common law principles. It will consider whether the standards of conduct provision amends the common law principles, adds anything new or narrows the common law duties in its statutory format.
- Full Text:
- Date Issued: 2014
Education is an essential service
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
Employer liability for sexual harassment in the workplace revisited
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
Incapacity for poor work performance in the education sector
- Authors: Faker, Mogamat Salie
- Date: 2014
- Subjects: Capacity and disability , Employees -- Dismissal of , Employees -- Rating of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10252 , http://hdl.handle.net/10948/d1020209
- Description: According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".
- Full Text:
- Date Issued: 2014
- Authors: Faker, Mogamat Salie
- Date: 2014
- Subjects: Capacity and disability , Employees -- Dismissal of , Employees -- Rating of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10252 , http://hdl.handle.net/10948/d1020209
- Description: According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".
- Full Text:
- Date Issued: 2014
Legislating business rescue in South Africa: a critical evaluation
- Authors: Darko-Mamphey, Dorothy
- Date: 2014
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11121 , http://hdl.handle.net/10353/d1015244
- Description: Social, political and economic changes in post-apartheid South Africa have generated the need for a major reform of the legislative regime governing companies in order to ensure that that regime is capable of addressing the challenges faced in domestic and international circles, and to also meet the demands of globalisation. 1 These developments include the change in culture from company liquidations to commercial renewal which caused the Department of Trade and Industry (DTI) to embark on drastic reforms of South Africa’s business rescue mechanism as part of the broader company law reform project. 2 The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution.
- Full Text:
- Date Issued: 2014
- Authors: Darko-Mamphey, Dorothy
- Date: 2014
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11121 , http://hdl.handle.net/10353/d1015244
- Description: Social, political and economic changes in post-apartheid South Africa have generated the need for a major reform of the legislative regime governing companies in order to ensure that that regime is capable of addressing the challenges faced in domestic and international circles, and to also meet the demands of globalisation. 1 These developments include the change in culture from company liquidations to commercial renewal which caused the Department of Trade and Industry (DTI) to embark on drastic reforms of South Africa’s business rescue mechanism as part of the broader company law reform project. 2 The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution.
- Full Text:
- Date Issued: 2014
South African criminal justice : a paradigm shift to victim-centred restorative justice?
- Authors: Apollos, Dumisani
- Date: 2014
- Subjects: Restorative justice -- South Africa , Apartheid -- South Africa -- History , Democracy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10183 , http://hdl.handle.net/10948/d1020078
- Description: The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.
- Full Text:
- Date Issued: 2014
- Authors: Apollos, Dumisani
- Date: 2014
- Subjects: Restorative justice -- South Africa , Apartheid -- South Africa -- History , Democracy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10183 , http://hdl.handle.net/10948/d1020078
- Description: The focal point of this treatise is the evaluation of the paradigm shift that has taken place in our South African criminal justice system post 1994. This shift is seen as a move away from a retribution approach to a more victim-centred approach. One needs to remember that the previous regime had unfair and unjust laws: to do away with such laws an interim constitution1 was enacted in Parliament in 1993 and became operational on 27 April 1994. It was the fundamental law of South Africa. This was later repealed by the final Constitution 2 on 4 April 1997. In its preamble it states categorically that it seeks to establish a “society based on democratic values, social justice and fundamental human rights” and “(to) lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law”. One of the priorities of democratic government in 1996 was the National Crime Prevention Strategy3 (hereafter referred to as the NCPS). It was designed to reduce the high level of crime in our country and has four pillars: the criminal justice process; reducing crime through environmental design; public values and education and trans-national crime. Pillar one is seen as a move away from retribution as punishment towards a system of restorative justice 4. Furthermore the South African government is a signatory to various international laws, treaties and declarations that uphold victims’ rights. One example would be the United Nations Declaration on the Basic Principle of Justice for Victims of Crime and abuse of Power 1985 - in fact the Victims’ Charter is compliant with this declaration. Yet one cannot negate the fact that in the last two decades the status of victims has altered significantly: there has been some development in the transformation of the criminal justice system. Since 1994 the focus gradually shifted from an adversarial and retributive criminal justice to that of restorative justice. This shift is vindicated by following examples: the adoption of the NCPS; the Truth and Reconciliation Commission 5 (hereafter referred to as the TRC); the adoption of the Service Charter for Victims of Crime 6(hereafter referred to as the Victims’ Charter); the enactment of the Child Justice Act7; and case laws which applied restorative justice principles such as S v Maluleke and S v Saayman. Therefore this treatise will evaluate the application of a restorative system by looking at the definition of restorative justice; government commitments to the system; the enactment of Acts and policies that support the system. This will be done in relation to the victims.
- Full Text:
- Date Issued: 2014
Termination of the employment contract due to ill-health in the public education sector
- Authors: Hlekani, Mphakamisi Witness
- Date: 2014
- Subjects: Employees -- Dismissal of , Collective labor agreements -- Education
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10256 , http://hdl.handle.net/10948/d1020969
- Description: The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.
- Full Text:
- Date Issued: 2014
- Authors: Hlekani, Mphakamisi Witness
- Date: 2014
- Subjects: Employees -- Dismissal of , Collective labor agreements -- Education
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10256 , http://hdl.handle.net/10948/d1020969
- Description: The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.
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- Date Issued: 2014