The extent of the right to strike in South African labour law
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
- Authors: Myeza, Sanele Phillip
- Date: 2009
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10225 , http://hdl.handle.net/10948/1037 , Strikes and lockouts -- Law and legislation -- South Africa , Right to strike -- South Africa , Labor laws and legislation -- South Africa
- Description: South Africa emerges from a history where, workers, and in particular African workers, were excluded from enjoying labour rights and particularly the right to strike, without consequences. Participation in industrial action was treated as a delict or even a criminal offence by employers and the state. A history where participation in a strike was treated as breach of contract and therefore the employer could dismiss striking employees at will. The first democratic elections in South Africa introduced a Constitutional democracy. The Constitution introduced the Bill of Rights in terms whereof the right of every employee to form and join trade unions and to participate in its activities and programmes and to strike was entrenched. Section 27 of the Constitution provides that national legislation shall be enacted to give effect to its purpose and to regulate labour matters, hence the Labour Relations Act of 1995. This study will show that the Labour Relations Act of 1995 marked a major change in South Africa’s statutory industrial relations system. Following the transition to the new political dispensation and a democratic system, the LRA encapsulated the new government’s aims to reconstruct and democratise the economy and society. It ushered in a new order where employers and workers had the opportunity to move away from the adversarialism that had characterised their relations in the past. It promoted more orderly collective bargaining and greater co-operation at workplace and industry levels, and provided an expeditious dispute resolution system. This study also takes a closer view of the provisions of international instruments and institutions such the International Labour Organisation and it, further, does a comparative analysis of the provisions of strike law in other jurisdictions like the United States of America, Canada and the United Kingdom. This study shows further that, while South Africa has democratised the workplace and done away with legislation, policies and practices that discriminated against the majority of the workers and deprived them of the rights that were otherwise enjoyed by their white counterparts to form and join unions and to participate in the activities of the unions, including participating in a strike and while it has made provisions for a protected strike under the LRA and while South Africa has tried to level the playing field and brought some equilibrium in the power between workers and employers, the very same right to participate in a strike and to compel employers to accede to their demands is taken away by the provision in the LRA that allows employers to lock them out and replace them with temporary workers.
- Full Text:
- Date Issued: 2009
The grooming process and the defence of consent in child sexual abuse cases
- Authors: Minnie, Deon
- Date: 2009
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10172 , http://hdl.handle.net/10948/1036 , Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Description: Child sexual abuse in its various guises is a phenomenon that has been part and parcel of society for centuries. It is only in the last few decades, however, that professional and societal interest in this social tragedy has been triggered, and continues to increase. The consequences and impact of child sexual abuse are far-reaching. Not only are individual victims marred by its consequences, but so too does it profoundly affect family systems and societies. As a result of professional interest in this field which has been fuelled by the popular media, the cloak of social secrecy which has covered this previously taboo subject has been shed. Although still hugely under-reported, sometimes even denied and buried by some individuals and societies, it is now widely acknowledged that child sexual abuse is a stark reality. Definitions of this phenomenon abound, with some definitions being more descriptive than others. The grooming process often forms an integral part of child sexual abuse. Through purposefully constructed relationships with their victims, sex offenders make their victims feel responsible for, complicit in and guilty about the abuse. The child is therefore tricked into keeping the abuse a secret. Often the child may not realise that what is happening is in fact abusive. Through grooming the abusive behaviour is normalised and the child may believe that it is part of an affectionate and caring relationship with the offender. The victim often gets lost in the labyrinth of confusion created by a web of deceit, which may result in consensual sexual activities between the child and the sex offender, a fact which is widely acknowledged. Consent is often raised as a defence when sex offenders are charged with and prosecuted for their crimes, more specifically in relation to victims who are over the age of twelve years and more frequently in relation to victims who are sixteen years and older. This consent, however, ought not to be valid for purposes of any sexual activities between such adults and children. Consent is often given as a consequence of the unique dynamics of the grooming process and the imbalance of power and authority. Furthermore, the child’s level of understanding and life experience, as shaped by the grooming process, may also have an important impact on ostensible consent given. South African courts, in accordance with international trends, have apparently started acknowledging the impact of the grooming process on consent given by children in sexual abuse cases. Some courts, as of late, are prepared to more readily reject the defence of consent in such cases. It is noteworthy that this trend has started to develop in South Africa even prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This act defines consent for purposes of the newly created offences, and also stipulates the circumstances in which ostensible consent does not comply with the definition. This definition does not differ materially from the “traditional” approach to consent that was applied prior to the commencement of this act. Furthermore, a number of new offences were created, amongst them the offence of sexual grooming of children. Courts can therefore no longer ignore the existence of the grooming phenomenon and the impact thereof in child sexual abuse cases.
- Full Text:
- Date Issued: 2009
- Authors: Minnie, Deon
- Date: 2009
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10172 , http://hdl.handle.net/10948/1036 , Child sexual abuse -- South Africa , Sexually abused children -- Family relationships -- South Africa , Sexual consent -- South Africa
- Description: Child sexual abuse in its various guises is a phenomenon that has been part and parcel of society for centuries. It is only in the last few decades, however, that professional and societal interest in this social tragedy has been triggered, and continues to increase. The consequences and impact of child sexual abuse are far-reaching. Not only are individual victims marred by its consequences, but so too does it profoundly affect family systems and societies. As a result of professional interest in this field which has been fuelled by the popular media, the cloak of social secrecy which has covered this previously taboo subject has been shed. Although still hugely under-reported, sometimes even denied and buried by some individuals and societies, it is now widely acknowledged that child sexual abuse is a stark reality. Definitions of this phenomenon abound, with some definitions being more descriptive than others. The grooming process often forms an integral part of child sexual abuse. Through purposefully constructed relationships with their victims, sex offenders make their victims feel responsible for, complicit in and guilty about the abuse. The child is therefore tricked into keeping the abuse a secret. Often the child may not realise that what is happening is in fact abusive. Through grooming the abusive behaviour is normalised and the child may believe that it is part of an affectionate and caring relationship with the offender. The victim often gets lost in the labyrinth of confusion created by a web of deceit, which may result in consensual sexual activities between the child and the sex offender, a fact which is widely acknowledged. Consent is often raised as a defence when sex offenders are charged with and prosecuted for their crimes, more specifically in relation to victims who are over the age of twelve years and more frequently in relation to victims who are sixteen years and older. This consent, however, ought not to be valid for purposes of any sexual activities between such adults and children. Consent is often given as a consequence of the unique dynamics of the grooming process and the imbalance of power and authority. Furthermore, the child’s level of understanding and life experience, as shaped by the grooming process, may also have an important impact on ostensible consent given. South African courts, in accordance with international trends, have apparently started acknowledging the impact of the grooming process on consent given by children in sexual abuse cases. Some courts, as of late, are prepared to more readily reject the defence of consent in such cases. It is noteworthy that this trend has started to develop in South Africa even prior to the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This act defines consent for purposes of the newly created offences, and also stipulates the circumstances in which ostensible consent does not comply with the definition. This definition does not differ materially from the “traditional” approach to consent that was applied prior to the commencement of this act. Furthermore, a number of new offences were created, amongst them the offence of sexual grooming of children. Courts can therefore no longer ignore the existence of the grooming phenomenon and the impact thereof in child sexual abuse cases.
- Full Text:
- Date Issued: 2009
The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
- Authors: Van der Walt, Johann
- Date: 2009
- Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
- Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
- Full Text:
- Date Issued: 2009
The possibility of psychotherapeutic privilege in South Africa
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Date Issued: 2009
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Date Issued: 2009
The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons
- Authors: James, Ncumisa Portia
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10226 , http://hdl.handle.net/10948/1034 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Description: Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
- Full Text:
- Date Issued: 2009
- Authors: James, Ncumisa Portia
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10226 , http://hdl.handle.net/10948/1034 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa , Downsizing of organizations -- Law and legislation -- South Africa
- Description: Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
- Full Text:
- Date Issued: 2009
The remedies for unfair dismissal
- Authors: Cokile, Siyabonga
- Date: 2009
- 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: vital:10227 , http://hdl.handle.net/10948/1033 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
- Full Text:
- Date Issued: 2009
- Authors: Cokile, Siyabonga
- Date: 2009
- 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: vital:10227 , http://hdl.handle.net/10948/1033 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
- Full Text:
- Date Issued: 2009
The role of reasonableness in the review of labour arbitration awards
- Authors: Botma, Carli Helena
- Date: 2009
- Subjects: Arbitration and award -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10194 , http://hdl.handle.net/10948/1035 , Arbitration and award -- South Africa , Arbitration, Industrial -- South Africa
- Description: The Labour Relations Act 66 of 1995 in section 145 and the Arbitration Act 42 of 1965 in section 33 uses wording very similar to one another to specifically enable the labour court to review CCMA and private arbitration awards respectively. As a result, labour arbitration award reviews are regarded as part of the family of special statutory reviews; the implication of such a classification being that the situation specific statutory provision(s) and the jurisprudential principles developed thereunder are applicable rather than those applicable to reviews in general. When the common purpose of the review procedure is then read with the legislature’s objective of quickly and finally resolving labour disputes at arbitration level as well as the limited grounds for review as provided for in the LRA and the AA, indications are that the labour courts’ review powers should be restrictively interpreted. However, because the making of CCMA arbitration awards also constitutes administrative action, the review thereof is also influenced by the constitutional right to just administrative action and reasonableness in particular. This does however not mean that applicants on review can rely directly on section 33 of the Final Constitution or on the broader grounds of section 6 of the PAJA to review CCMA arbitration awards on the basis of unreasonableness. Section 145 of the LRA constitutes administrative action legislation within the specialised labour law sphere and reasonableness is not a ground mentioned therein. A constitutionally consistent interpretation of section 145 however has the effect that reasonableness suffuses the statutory defined grounds for review; a state of affairs that does not threaten the restrictive scope of CCMA arbitration award reviews. In terms thereof, courts on review must establish whether the decision, alleged to have been reached by the commissioner as a result of the occurrence of one or more of the section 145 grounds for review, is one that a reasonable decision-maker could not reach. This interpretation accords far better with the legislature’s specific objectives pertaining to labour arbitration award reviews and the permissible range of reasonableness further ensures that awards are not easily interfered with on review. When a court is then called upon to determine whether or not a decision is reviewable in terms of section 145, it is entitled to have regard to both the award and the record of the proceedings. If, after such scrutiny, the court is of the opinion that the decision was arrived at as a result of the occurrence of a defect as contemplated by section 145 of the LRA, the decision should be reviewed and set aside irrespective of the fact that the outcome can be sustained by other reasons also identifiable from the record; the focus of review always being on the commissioner’s process of reasoning and the way in which he arrived at his findings rather than the outcome of the process. A court should however be mindful of the fact that erroneous reasons for findings per se are not reviewable grounds, but at best serve as evidence of a reviewable ground that will in conjunction with other considerations have to be sufficiently compelling to justify an inference that the decision is unreasonable. In the case of jurisdictional reviews, the reasonableness standard is also applicable because the focus is on the commissioner’s subjective reasons for his findings rather than the jurisdictional fact’s objective existence. A court on review can accordingly set aside a decision following upon the non-observance of a jurisdictional fact if the commissioner, in deciding that the jurisdictional fact existed, committed one or more of the section 145 grounds for review. In the case of private arbitration awards, applicants seeking a review must do so on the grounds recognised in section 33 of the AA and reasonableness is not one of them. This is however not the only reason why these awards are also not subject to the scrutiny of the reasonableness test on review. The other reason relates to the fact that the issuing of private arbitration awards does not constitute administrative action. The disputing parties can also not by agreement incorporate the reasonableness standard into private arbitration award reviews conducted by the labour court. Such parties are however entitled to establish a private appeal or private review body in their arbitration agreement, clothing it with the powers that they wish to confer upon it, including the ability to review an award subject to the reasonableness standard. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Botma, Carli Helena
- Date: 2009
- Subjects: Arbitration and award -- South Africa , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10194 , http://hdl.handle.net/10948/1035 , Arbitration and award -- South Africa , Arbitration, Industrial -- South Africa
- Description: The Labour Relations Act 66 of 1995 in section 145 and the Arbitration Act 42 of 1965 in section 33 uses wording very similar to one another to specifically enable the labour court to review CCMA and private arbitration awards respectively. As a result, labour arbitration award reviews are regarded as part of the family of special statutory reviews; the implication of such a classification being that the situation specific statutory provision(s) and the jurisprudential principles developed thereunder are applicable rather than those applicable to reviews in general. When the common purpose of the review procedure is then read with the legislature’s objective of quickly and finally resolving labour disputes at arbitration level as well as the limited grounds for review as provided for in the LRA and the AA, indications are that the labour courts’ review powers should be restrictively interpreted. However, because the making of CCMA arbitration awards also constitutes administrative action, the review thereof is also influenced by the constitutional right to just administrative action and reasonableness in particular. This does however not mean that applicants on review can rely directly on section 33 of the Final Constitution or on the broader grounds of section 6 of the PAJA to review CCMA arbitration awards on the basis of unreasonableness. Section 145 of the LRA constitutes administrative action legislation within the specialised labour law sphere and reasonableness is not a ground mentioned therein. A constitutionally consistent interpretation of section 145 however has the effect that reasonableness suffuses the statutory defined grounds for review; a state of affairs that does not threaten the restrictive scope of CCMA arbitration award reviews. In terms thereof, courts on review must establish whether the decision, alleged to have been reached by the commissioner as a result of the occurrence of one or more of the section 145 grounds for review, is one that a reasonable decision-maker could not reach. This interpretation accords far better with the legislature’s specific objectives pertaining to labour arbitration award reviews and the permissible range of reasonableness further ensures that awards are not easily interfered with on review. When a court is then called upon to determine whether or not a decision is reviewable in terms of section 145, it is entitled to have regard to both the award and the record of the proceedings. If, after such scrutiny, the court is of the opinion that the decision was arrived at as a result of the occurrence of a defect as contemplated by section 145 of the LRA, the decision should be reviewed and set aside irrespective of the fact that the outcome can be sustained by other reasons also identifiable from the record; the focus of review always being on the commissioner’s process of reasoning and the way in which he arrived at his findings rather than the outcome of the process. A court should however be mindful of the fact that erroneous reasons for findings per se are not reviewable grounds, but at best serve as evidence of a reviewable ground that will in conjunction with other considerations have to be sufficiently compelling to justify an inference that the decision is unreasonable. In the case of jurisdictional reviews, the reasonableness standard is also applicable because the focus is on the commissioner’s subjective reasons for his findings rather than the jurisdictional fact’s objective existence. A court on review can accordingly set aside a decision following upon the non-observance of a jurisdictional fact if the commissioner, in deciding that the jurisdictional fact existed, committed one or more of the section 145 grounds for review. In the case of private arbitration awards, applicants seeking a review must do so on the grounds recognised in section 33 of the AA and reasonableness is not one of them. This is however not the only reason why these awards are also not subject to the scrutiny of the reasonableness test on review. The other reason relates to the fact that the issuing of private arbitration awards does not constitute administrative action. The disputing parties can also not by agreement incorporate the reasonableness standard into private arbitration award reviews conducted by the labour court. Such parties are however entitled to establish a private appeal or private review body in their arbitration agreement, clothing it with the powers that they wish to confer upon it, including the ability to review an award subject to the reasonableness standard. , Abstract
- Full Text:
- Date Issued: 2009
The war againts organised crime: a critical assessment of South African asset forfeiture law and its impact on redress for victims of crime
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2009
- Subjects: Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10173 , http://hdl.handle.net/10948/905 , Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: This research will be undertaken in the field of both criminal and civil law with particular focus on international interventions in the fight against organized criminal activities, assets forfeitsure in South Africa in general and its treatment of victims of the underlying forfeitsure crimes ("the victims") in assert forfeitsure, more specifically.
- Full Text: false
- Date Issued: 2009
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2009
- Subjects: Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10173 , http://hdl.handle.net/10948/905 , Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: This research will be undertaken in the field of both criminal and civil law with particular focus on international interventions in the fight against organized criminal activities, assets forfeitsure in South Africa in general and its treatment of victims of the underlying forfeitsure crimes ("the victims") in assert forfeitsure, more specifically.
- Full Text: false
- Date Issued: 2009
A comparison between the South African and Kenyan labour law systems
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
A critique of dispute resolution in the public service
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
A study of the Amathole District Municipality's settlement plan in the light of the land reform and spatial planning measures
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
An evaluation of the constitutionality of the common law crime of criminal defamation
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
An evaluation of the dispute resolution mechanisms of conciliation and arbitration
- Authors: Ndimurwimo, Leah Alexis
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10206 , http://hdl.handle.net/10948/753 , Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Description: South African labour laws have undergone tremendous amendments before and after independence. This paper focuses on the development after independence, therefore section 34 of the Constitution of 1996, provisions of the Labour Relations Act of 1995 and other laws which deal with labour matters and regulate the labour relations and disputes in the country will be considered. The labour laws in South Africa provide inter alia for the dispute resolution mechanisms, the manner on which disputes should be handled by different organs which are empowered to do so. My focus will be to see how alternative disputes resolution processes of conciliation and arbitration in the Eastern Cape Province aim to transform the South African and global labour market by promoting an integrated simple, quick but efficient and inexpensive dispute settlement services in order to reduce the back log of cases, maintain labour peace, promote democracy at workplace with the view of advancing economic and social justice.
- Full Text:
- Date Issued: 2008
- Authors: Ndimurwimo, Leah Alexis
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10206 , http://hdl.handle.net/10948/753 , Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Description: South African labour laws have undergone tremendous amendments before and after independence. This paper focuses on the development after independence, therefore section 34 of the Constitution of 1996, provisions of the Labour Relations Act of 1995 and other laws which deal with labour matters and regulate the labour relations and disputes in the country will be considered. The labour laws in South Africa provide inter alia for the dispute resolution mechanisms, the manner on which disputes should be handled by different organs which are empowered to do so. My focus will be to see how alternative disputes resolution processes of conciliation and arbitration in the Eastern Cape Province aim to transform the South African and global labour market by promoting an integrated simple, quick but efficient and inexpensive dispute settlement services in order to reduce the back log of cases, maintain labour peace, promote democracy at workplace with the view of advancing economic and social justice.
- Full Text:
- Date Issued: 2008
An evaluation of the questions posed to child witnesses in court to determine whether they are developmentally appropriate
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
Confiscation orders in terms of the prevention of Organised Crime Act
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
Dumping, antidumping and the future prospects for fair international trade
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
International law before municipal courts: the role of International Court of Justice decisions in domestic court proceedings with specific reference to United States case examples
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
Life in the suburbs after "Grootboom": the role of local government in realising housing rights in the Eastern Cape
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008