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Xenophobia in South Africa: a socio-legal analysis

- Sibanda, Samukeliso

Authors: Sibanda, Samukeliso
Date: 2011-04
Subjects: Xenophobia -- South Africa
Language: English
Type: Master's theses , text
Identifier: http://hdl.handle.net/10353/25548 , vital:64334
Description: The ways in which xenophobia continues to express itself in South Africa deserve to be noted at an advanced study. Over the past 15 years the expressions of xenophobia have been accompanied by increased deaths, more discrimination, increase of stereotyping of people of African descent and increased violence towards non-nationals, especially in the poorer parts of South Africa. Many of such xenophobic expressions have gone unnoticed and where they have been noticed, they have received little attention, leading to the exacerbation of the problem. The researcher of this study dwelt on a socio-legal analysis of xenophobia in South Africa. Appreciating the legal connotations and the expressions of xenophobia in South African society is a major concern of this study. To fulfill the objectives of this study, the researcher explores the extent and expression of xenophobia, in addition to analyzing and assessing the efficacy of legislative and other measures aimed to protect non-nationals in South Africa. The study investigates the role of state organizations, government and civil society and evaluates the impact of xenophobia on the enjoyment of human rights by non-nationals. A central objective of this study was to suggest alternative ways of explaining and understanding xenophobia and the responses to it. Empirical research was conducted to explore the extent of xenophobia in South Africa and how and why it is manifested in the way it is. Through in-depth face-to-face interviews it was revealed that the extent and manifestation of xenophobia differs in relation to particular communities, economic set ups and social settings; with poor communities being the most vulnerable to violent xenophobic attacks. Further, it was interesting to note that people have no firm understanding of what xenophobia entails as a social, legal, political and economical phenomenon. Again, it became evident that xenophobia still manifests in a country founded on values of equality, dignity and justice. Moreover, it was established that there is a weak link between law, human action and human behavior. It also became evident that education and sensitization need to be employed if xenophobic perceptions and behaviors are to be sufficiently dealt with. Recommendations were provided upon completion of the study. These included developing the law consciously, thus ensuring that the law has public legitimacy; effective law enforcement and prosecution; human rights education and training (especially in government departments, civil society organizations and institutions of learning); use of media and other communication channels to advocate for non discrimination, equality and respect for human rights, values and integration. Finally, the fight against xenophobia, racial discrimination and other related forms of intolerance needs to be taken up by all members of South African society and Africa at large. , Thesis (LLM) -- Faculty of Law, 2011
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Date Issued: 2011-04

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A comparative analysis of the development of performers' rights in the United Kingdom and South Africa

- Wagenaar, Tanya

Authors: Wagenaar, Tanya
Date: 2011
Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
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Date Issued: 2011

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An analysis of the elements of genocide with reference to the South African farmer's case

- Du Toit, Johanna Helena

Authors: Du Toit, Johanna Helena
Date: 2011
Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
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Date Issued: 2011

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An evaluation of South Africa's legislation to combat organised crime

- Nkosi, Zaba Philip

Authors: Nkosi, Zaba Philip
Date: 2011
Subjects: Criminal law , Legislation -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
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Date Issued: 2011

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Balancing the educator's rights to fair labour practices and to strike with the right to education

- Govender, Mahalingum

Authors: Govender, Mahalingum
Date: 2011
Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
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Date Issued: 2011

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Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right

- Batchelor, Bronwyn Le Ann

Authors: Batchelor, Bronwyn Le Ann
Date: 2011
Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
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Date Issued: 2011

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Dismissal law in the education sector

- Myeki, Mfundo

Authors: Myeki, Mfundo
Date: 2011
Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
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Date Issued: 2011

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Innovations introduced into the South African criminal justice by the child justice Act 75 of 2008

- Jokani, Mkhuseli Christopher

Authors: Jokani, Mkhuseli Christopher
Date: 2011
Subjects: Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10176 , http://hdl.handle.net/10948/1571 , Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
Description: The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
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Date Issued: 2011

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The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children

- Hlophe, Stanley Siphiwe

Authors: Hlophe, Stanley Siphiwe
Date: 2011
Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
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Date Issued: 2011

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The concept of decent work in a South African context

- Ndung'u, Agnes

Authors: Ndung'u, Agnes
Date: 2011
Subjects: Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10199 , http://hdl.handle.net/10948/1618 , Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
Description: Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
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Date Issued: 2011

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The constitutional rights of 'benefactor children' and 'saviour siblings' to bodily intergrity and autonomy

- Du Plessis, Emma Kate

Authors: Du Plessis, Emma Kate
Date: 2011
Subjects: Children's rights , Civil rights , Genetic engineering
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10283 , http://hdl.handle.net/10948/d1010420 , Children's rights , Civil rights , Genetic engineering
Description: In modern society, children are acknowledged as bearers of both children‟s rights and all other rights in the Bill of Rights which generally apply to children. One important right, outside of section 28, is that of bodily integrity or the right to control and decide what happens to their body. Therefore, children theoretically have the right to consent to medical treatment and surgery. However, children are generally deemed to lack the necessary maturity to make decisions of this nature and require parental consent before any medical procedure may be performed. Following the enactment of the Children‟s Act 38 of 2005, the age of consent for medical intervention was lowered to the uniform age of twelve. Children above the age of twelve are recognised as having the capacity to make their own decisions in respect of bodily integrity, whereas those under twelve still require parental consent. While this may be a positive evelopment, it is potentially problematic for two groups of children, known as „benefactor children‟ and „saviour siblings‟. In the last 50 years, there has been a noticeable advancement in the field of genetic research. One such development is the possibility of creating one child to save the life of another through tissue or organ donation. This has provided options to parents of children with life threatening conditions where before, there was little hope of a cure. Now, at the request of these parents, children can be specifically “genetically engineered” as an embryo, to become a tissue or organ match to a sick sibling. These children are known as „saviour siblings‟. Another group of children has emerged. While not the result of “genetic engineering”, they serve a similar purpose in being potential life-saving donors to an ill sibling and are known as „benefactor children‟. Both categories of children enjoy the protection of fundamental rights. For those who are under twelve years of age however, the right to bodily integrity can be infringed upon by the proposed surgical removal of organs or tissue for the benefit of a sick sibling, based purely on a parent‟s consent. At stake too, is the right to reproductive autonomy. Parents bear children for a number of different reasons, which can include raising a child to save the life of another. As they have the right to reproductive autonomy, adults are able to decide when they want children and for what reason they want children, which can include the various techniques used to bring about „saviour siblings‟. However, as rights are mutually interrelated and nterdependent, they cannot be viewed in isolation. Therefore, it must be asked: does a person‟s right to reproductive autonomy, as guaranteed by the Constitution, justify interference with an embryo? As an embryo is not recognised in South African law as a legal subject, it will be difficult to justify interference with this right on this basis. The right to consent to medical intervention only from age twelve was described as potentially problematic for „benefactor children‟ and „saviour siblings‟, as parents with seriously ill children may become so emotionally burdened, that they place the welfare of the sick child over that of the healthy child. Thus, it is possible that parents will consent to any and all procedures on the „benefactor child‟ or „saviour sibling‟, regardless of the implications to the health and suffering of the healthy child. Section 28(2) of the Constitution states that the child‟s best interests are of paramount importance but, it must be asked, whose best interests are more important when more than one child is involved? As this is a decision parents are incapable of making at that time, the decision should be made by a neutral, impartial and unemotional third party such as the Court, which can be assisted by the Family Advocate and an ombudsman, who are experts in assisting children and promoting their best interests. Presently, South African law does not expressly address „saviour siblings‟. However, with few changes to the National Health Act and other Regulations, this is an area which could be regulated in time. These changes could include finalising the draft regulations as well as providing a list of the medical and dental purposes for which blood and tissue can be removed and should make specific reference to the removal of tissue, blood or blood products to treat a sick sibling. It is also imperative that South Africa regulates these matters now, as „saviour siblings‟ are no longer simply a matter for the future. Furthermore, legislation needs to be amended and enacted to prevent the law from becoming out-dated and redundant, leaving „benefactor children‟ and „saviour siblings‟ vulnerable while law is being drafted. In that international law is silent on the matter, South Africa would be well advised to consider foreign law such as the United Kingdom, in developing its law. As the United Kingdom has developed a National Board, so too should South Africa, as this would assist in regulating „saviour siblings‟ by allowing members to review each proposed case of „saviour siblings‟. This is merely one recommendation of several which could facilitate a smooth, controlled regulation of a highly emotional topic. Children remain one of the most vulnerable groups in society and their rights are often susceptible to infringement or abuse. It is incumbent on the law to ensure that, wherever possible, these rights are protected, especially as science continues to advance and it becomes more difficult to determine what is morally correct.
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Date Issued: 2011

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The education sector as an essential service

- Adams, Anton John

Authors: Adams, Anton John
Date: 2011
Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
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Date Issued: 2011

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The extension of employment rights to employees who work unlawfully

- Gauss, Tanja Claudine

Authors: Gauss, Tanja Claudine
Date: 2011
Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
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Date Issued: 2011

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The implementation of the right to education in South Africa and Nigeria

- Taiwo, Elijah Adewale

Authors: Taiwo, Elijah Adewale
Date: 2011
Subjects: Right to education -- South Africa , Right to education -- Nigeria , Human rights -- Study and teaching , Comparative education , Education -- South Africa , Education -- Nigeria , Right to education -- Law and legislation -- South Africa , Right to education -- Law and legislation -- Nigeria
Language: English
Type: Thesis , Doctoral , LLD
Identifier: vital:10279 , http://hdl.handle.net/10948/1392 , Right to education -- South Africa , Right to education -- Nigeria , Human rights -- Study and teaching , Comparative education , Education -- South Africa , Education -- Nigeria , Right to education -- Law and legislation -- South Africa , Right to education -- Law and legislation -- Nigeria
Description: The thesis examines the right to education in South Africa and Nigeria. It presents the right to education as an empowerment right which is given a wide recognition in a number of important international and regional human rights instruments as well as in national constitutions. It asserts that the right to education is a right with a multiplying effect in the sense that where it is effectively guaranteed, it enhances the enjoyment of all other rights and freedoms, and when it is denied, it precludes the enjoyment of many other human rights. The thesis examines the provisions of relevant international and regional human rights instruments to assess the adequacy of a framework that applies to South Africa and Nigeria's obligations regarding the right to education. It argues that those instruments impose obligations on all the States to make primary, secondary and higher levels of education available, accessible, acceptable and adaptable to all in their territories. It argues that by having ratified those international agreements in which the right to education is protected, both South Africa and Nigeria assume obligations under international law, enjoining them to realise the right to education and to respect freedoms in education. The study adopts a comparative approach and relies on primary and secondary sources of data; the data is subjected to an in-depth content analysis. The focus of the comparison is on whether the South African's position regarding the right to education can inform Nigeria's interpretation of the right to education. The reason being that the Nigerian Constitution does not provide for the right to education as a basic right as exists in South Africa. The Nigerian Constitution categorised the right to education under “fundamental objectives and directive principles” which are non-justiciable. In this sense, the thesis argues that the legal classification of the right to education, to a large extent, affects its realisation in Nigeria. It suggests that an important area where Nigeria could learn from South Africa is the issue of justiciability and constitutionalising the right to education as well as other socio-economic rights. In terms of implementation, the thesis submits that despite the international obligations and commitments to provide education for all, there is a significant gap between what is stipulated and the practical realities in the two countries. It argues that the right to education is more than a mere school attendance, how well a learner progresses in school is equally important. It posits that the high failure rates and the progressive slide in students' performances in schools xx examinations as shown in the study illustrate the poor quality and falling standard of education in the two countries. South Africa enjoys one of the highest rates of formal school enrolment of any developing country, yet the link between access and success is also weak in the South African schools just as in Nigerian schools. Inadequate planning, poor implementation of policies, lack of adequate resources and commitments are identified as the prime factors hampering the implementation of the right to education in both countries. Solving these problems and making the right to education realisable call for a renewed government commitments and investment of appropriate human and financial resources on education. This also requires a strong political will as well as concerted efforts of all the various actors in the educational sector in the two countries.
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Date Issued: 2011

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The legal and regulatory aspects of international remittances within the SADC region

- Mbalekwa, Simbarashe

Authors: Mbalekwa, Simbarashe
Date: 2011
Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
Language: English
Type: Thesis , Masters , LLM
Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
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Date Issued: 2011

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