Fairness of a dismissal from a contractural and administrative law perspective
- Authors: Voultsos, Leon
- Date: 2010
- Subjects: Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10217 , http://hdl.handle.net/10948/1288 , Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Description: Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.
- Full Text:
- Date Issued: 2010
- Authors: Voultsos, Leon
- Date: 2010
- Subjects: Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10217 , http://hdl.handle.net/10948/1288 , Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Description: Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.
- Full Text:
- Date Issued: 2010
The applicability of the promotion of Administrative Justice Act in review of CCMA arbitration awards
- Phanyane, Namadzavho California
- Authors: Phanyane, Namadzavho California
- Date: 2010
- Subjects: Arbitration (Administrative law) -- South Africa , Arbitration and award -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10219 , http://hdl.handle.net/10948/1282 , Arbitration (Administrative law) -- South Africa , Arbitration and award -- Law and legislation -- South Africa
- Description: South Africa’s employment law has undergone more frequent and dynamic changes than any area of the law, in recent years. The ability of employers and employees to regulate their respective rights and duties vis-à-vis each other by independent agreement has been progressively whittled down by statutory intervention. In so limiting the capacity of parties to the employment relationship to regulate the nature of their relationship, South Africa has followed development in Western industrialised nations. Against this background, the drafters of the Labour Relations Act1 (LRA), as amended, proposed a comprehensive framework of law governing the collective relations between employers and trade unions in all sectors of the economy. The LRA2 created a specialised set of forums and tribunals to deal with labour and employment related matters. It established Bargaining Councils, the Commission for Conciliation Mediation and Arbitration (CCMA), the Labour Court (LC) and the Labour Appeal Court (LAC). It also created procedures designed to accomplish the objective of simple, inexpensive and accessible resolution of labour disputes. In redesigning labour law, the legislature decided that some disputes between employers and employees should be dealt with by arbitrators and others by judges. It is this distinction that resulted in the creation of the CCMA and the Labour Court to perform arbitration and adjudication respectively. The result of adjudication is generally subject to appeal to a higher court. The result of arbitration is generally subject to review. Arbitration was given statutory recognition in South Africa by the Arbitration Act3. That Act provides a framework within which parties in dispute may if they wish appoint their own “judge” and supply him or her with their terms of reference tailored to their needs. With the foregoing in mind, the purpose of this work is the provision of a selection of landmark cases that dealt with the review function of CCMA awards. This selection 1 Act 66 of 1995 as amended comprises of landmark judgments of the different courts of the land. The study uses, as it departure point, legislative framework to elicit the extent to which review is extended to the litigants. Apart from looking at the legislative provisions towards review grounds, reference is made to specific landmark judgments that have an effect on this subject in order to provide a comprehensive and explicit picture of how CCMA arbitration awards may be taken on review. This study focuses on substantive law developed by the Labour Court, High Court, Supreme Court of Appeal and finally the Constitutional Court. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of review could lead to failure to achieve the objectives of the study. It looks at specific South African case law, judgments of the courts and the jurisprudence in the field of employment law so that the reader is presented with a clearer picture of recent developments in addressing review of arbitration awards. The concluding remarks are drawn from a variety of approaches used by the authorities in the field of employment law in dealing with review of CCMA arbitration awards and issues for further research are highlighted.
- Full Text:
- Date Issued: 2010
- Authors: Phanyane, Namadzavho California
- Date: 2010
- Subjects: Arbitration (Administrative law) -- South Africa , Arbitration and award -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10219 , http://hdl.handle.net/10948/1282 , Arbitration (Administrative law) -- South Africa , Arbitration and award -- Law and legislation -- South Africa
- Description: South Africa’s employment law has undergone more frequent and dynamic changes than any area of the law, in recent years. The ability of employers and employees to regulate their respective rights and duties vis-à-vis each other by independent agreement has been progressively whittled down by statutory intervention. In so limiting the capacity of parties to the employment relationship to regulate the nature of their relationship, South Africa has followed development in Western industrialised nations. Against this background, the drafters of the Labour Relations Act1 (LRA), as amended, proposed a comprehensive framework of law governing the collective relations between employers and trade unions in all sectors of the economy. The LRA2 created a specialised set of forums and tribunals to deal with labour and employment related matters. It established Bargaining Councils, the Commission for Conciliation Mediation and Arbitration (CCMA), the Labour Court (LC) and the Labour Appeal Court (LAC). It also created procedures designed to accomplish the objective of simple, inexpensive and accessible resolution of labour disputes. In redesigning labour law, the legislature decided that some disputes between employers and employees should be dealt with by arbitrators and others by judges. It is this distinction that resulted in the creation of the CCMA and the Labour Court to perform arbitration and adjudication respectively. The result of adjudication is generally subject to appeal to a higher court. The result of arbitration is generally subject to review. Arbitration was given statutory recognition in South Africa by the Arbitration Act3. That Act provides a framework within which parties in dispute may if they wish appoint their own “judge” and supply him or her with their terms of reference tailored to their needs. With the foregoing in mind, the purpose of this work is the provision of a selection of landmark cases that dealt with the review function of CCMA awards. This selection 1 Act 66 of 1995 as amended comprises of landmark judgments of the different courts of the land. The study uses, as it departure point, legislative framework to elicit the extent to which review is extended to the litigants. Apart from looking at the legislative provisions towards review grounds, reference is made to specific landmark judgments that have an effect on this subject in order to provide a comprehensive and explicit picture of how CCMA arbitration awards may be taken on review. This study focuses on substantive law developed by the Labour Court, High Court, Supreme Court of Appeal and finally the Constitutional Court. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of review could lead to failure to achieve the objectives of the study. It looks at specific South African case law, judgments of the courts and the jurisprudence in the field of employment law so that the reader is presented with a clearer picture of recent developments in addressing review of arbitration awards. The concluding remarks are drawn from a variety of approaches used by the authorities in the field of employment law in dealing with review of CCMA arbitration awards and issues for further research are highlighted.
- Full Text:
- Date Issued: 2010
The child accused in the criminal justice system
- Authors: Brink, Ronelle Bonita
- Date: 2010
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10178 , http://hdl.handle.net/10948/1229 , Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Description: The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.
- Full Text:
- Date Issued: 2010
- Authors: Brink, Ronelle Bonita
- Date: 2010
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10178 , http://hdl.handle.net/10948/1229 , Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Description: The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.
- Full Text:
- Date Issued: 2010
The effectiveness of human child trafficking legislation in South Africa
- Authors: Mashiyi, Tandeka
- Date: 2010
- Subjects: Human trafficking -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10281 , http://hdl.handle.net/10948/1289 , Human trafficking -- Law and legislation -- South Africa
- Description: Trafficking in human beings is a major problem worldwide. Human trafficking is as a result of a complex set of interrelated push and pull factors. Push factors includeinter alia poverty, a lack of opportunities, dislocation of families, gender, racial and ethnic inequalities and the break-up of families. Research shows that pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel. It is as a result of the global epidemic of this trafficking in persons that certain instruments on an international level as well as legislation on a national level have been enacted. The question which arises is: are these pieces of legislation effective in dealing with the scourge of human trafficking? Every legislation passed will have its strengths, as well as weaknesses but the main objective of such legislation should always be to combat, criminalise and prosecute the specific criminal act. Furthermore, the enacted legislation should be designed to effectively combat the challenges which threaten to exacerbate the criminal act. Failing to fulfil this intention will render such legislation nugatory. This treatise will be looking at various international instruments that have been passed abd v adopted by various countries, which specifically deal with trafficking in humans generally and specifically in relation to the children. International instruments that will be discussed include inter alia, slavery Convention, Convention on the Rights of the child, Worst forms or Child Labour Convention, Parlemo Protocol, United Nations Transnational Organised Crime Protocol to mention but a few. All these instruments have in a way dealt with and made provisions for the criminalisation of the act of trafficking in humans and a the scrounge of trafficking escalates the international governments strive to enact instruments that are going to be able to curtail this pandemic of trafficking. As more focus will be on the South African legislation this treatise is also going to examine all the relevant piece of legislation that have been passed by the South African government in order to deal with human trafficking. These will include the discussion of the Constitution, Child Care Act, Children’s Act, Children’s Amendment Act, Criminal Law (Sexual Offences) and Related matters. Amendment Act Prevention of Organised Crime Act as well as the Prevention and combating of Trafficking in Persons Bill. The treatise will listen critically discuss the Bill in so far as its strengths and weaknesses are concerned.
- Full Text:
- Date Issued: 2010
- Authors: Mashiyi, Tandeka
- Date: 2010
- Subjects: Human trafficking -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10281 , http://hdl.handle.net/10948/1289 , Human trafficking -- Law and legislation -- South Africa
- Description: Trafficking in human beings is a major problem worldwide. Human trafficking is as a result of a complex set of interrelated push and pull factors. Push factors includeinter alia poverty, a lack of opportunities, dislocation of families, gender, racial and ethnic inequalities and the break-up of families. Research shows that pull factors include the promise of a better life, consumer aspirations and lack of information on the risks involved, established patterns of migration, porous borders and fewer constraints on travel. It is as a result of the global epidemic of this trafficking in persons that certain instruments on an international level as well as legislation on a national level have been enacted. The question which arises is: are these pieces of legislation effective in dealing with the scourge of human trafficking? Every legislation passed will have its strengths, as well as weaknesses but the main objective of such legislation should always be to combat, criminalise and prosecute the specific criminal act. Furthermore, the enacted legislation should be designed to effectively combat the challenges which threaten to exacerbate the criminal act. Failing to fulfil this intention will render such legislation nugatory. This treatise will be looking at various international instruments that have been passed abd v adopted by various countries, which specifically deal with trafficking in humans generally and specifically in relation to the children. International instruments that will be discussed include inter alia, slavery Convention, Convention on the Rights of the child, Worst forms or Child Labour Convention, Parlemo Protocol, United Nations Transnational Organised Crime Protocol to mention but a few. All these instruments have in a way dealt with and made provisions for the criminalisation of the act of trafficking in humans and a the scrounge of trafficking escalates the international governments strive to enact instruments that are going to be able to curtail this pandemic of trafficking. As more focus will be on the South African legislation this treatise is also going to examine all the relevant piece of legislation that have been passed by the South African government in order to deal with human trafficking. These will include the discussion of the Constitution, Child Care Act, Children’s Act, Children’s Amendment Act, Criminal Law (Sexual Offences) and Related matters. Amendment Act Prevention of Organised Crime Act as well as the Prevention and combating of Trafficking in Persons Bill. The treatise will listen critically discuss the Bill in so far as its strengths and weaknesses are concerned.
- Full Text:
- Date Issued: 2010
The liability of Internet service providers for unlawful content posted by third parties
- Authors: O'Brien, N D
- Date: 2010
- Subjects: Internet -- Law and legislation -- South Africa , Electronic commerce -- Law and legislation -- South Africa , Third parties (Law) -- South Africa , Computer networks -- Law and legislation -- South Africa , Internet service providers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10264 , http://hdl.handle.net/10948/1149 , Internet -- Law and legislation -- South Africa , Electronic commerce -- Law and legislation -- South Africa , Third parties (Law) -- South Africa , Computer networks -- Law and legislation -- South Africa , Internet service providers -- South Africa
- Description: Internet Service Providers (ISP’s) are crucial to the operation and development of the Internet. However, through the performance of their basic functions, they faced the great risk of civil and criminal liability for unlawful content posted by third parties. As this risk threatened the potential of the Internet, various jurisdictions opted to promulgate legislation that granted ISP’s safe harbours from liability. The South African (RSA) response is Chapter XI of the Electronic Communications and Transactions Act (ECTA). The protection it provides is however not absolute. It is limited to ISP’s that are members of an Industry Representative Body (IRB) and those ISP’s must perform particular functions in relation to third party content in a certain manner to obtain limited liability. Due to the ECTA’s limited application and a lack of authority, the question is raised as to what is the liability of ISP’s for unlawful content posted by third parties? This dissertation pays particular attention to ISP liability for third party defamatory statements, hate speech, and obscene and indecent material. The role and characteristics of ISP’s in the functioning of the Internet is described. It is determined that a wide legal definition would be required to encompass the many roles they perform. The definition provided by the ECTA is wide and many different types of ISP can fall underneath it. This may have unintended consequences as entities may receive protection that the legislature did not intend. The appropriate laws in the United States of America (USA) and the United Kingdom are surveyed and suggestions as to the extent of ISP liability in circumstances where the ECTA does not apply are made. It is established that their position is uncertain due to difficulties in applying the law to the Internet. This could result in the law being applied incorrectly and ISP’s erroneously found liable. The ECTA’s threshold requirements limit the availability of the safe harbor provisions to ISP’s that are members of a recognised IRB. The IRB must comply with an extensive set of requirements to obtain recognition. The purpose of these requirements is to ensure that only responsible ISP’s obtain the protection provided by the act. After an examination of these requirements, their necessity is questioned as their purpose appears to be contrary to the logic of the safe harbours provided by the ECTA. The safe harbours are analysed and comparisons made to similar legislation that exists in the USA and the European Union (EU). It was established that the ECTA is a hybrid of the USA and EU legislation, and to a certain extent improves on them. It was suggested that the extent of ISP liability in relation to certain unlawful content is clearer under the ECTA. However, exceptions may exist in relation to hate speech and obscene and indecent content as a result of legislation that does not properly take the technology of the Internet into account. It was recommended that certain action be taken to correct this position to prevent any negative effects on the Internet industry and conflict with the objectives of the ECTA. The provision of limited liability contained in the ECTA is balanced with a notice and takedown procedure, which provides relief to victims of unlawful content. This procedure is analysed and it appears to be effective in providing relief. However, through an examination of concerns raised in relation to this type of procedure as it exists in the USA and the EU, it is suggested that certain flaws exist. The take-down procedure negatively effects the freedom of expression and the third party’s rights to due process. Further, the threshold requirements result in not all the users of the Internet being provided with the same remedies. It is recommended that certain action be taken to correct these flaws. The solution provided by the ECTA should be favoured over the uncertainty that existed before it promulgation. It may be necessary to correct particular flaws that exist. Certain recommendations are suggested in this regard and the concluding chapter.
- Full Text:
- Date Issued: 2010
- Authors: O'Brien, N D
- Date: 2010
- Subjects: Internet -- Law and legislation -- South Africa , Electronic commerce -- Law and legislation -- South Africa , Third parties (Law) -- South Africa , Computer networks -- Law and legislation -- South Africa , Internet service providers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10264 , http://hdl.handle.net/10948/1149 , Internet -- Law and legislation -- South Africa , Electronic commerce -- Law and legislation -- South Africa , Third parties (Law) -- South Africa , Computer networks -- Law and legislation -- South Africa , Internet service providers -- South Africa
- Description: Internet Service Providers (ISP’s) are crucial to the operation and development of the Internet. However, through the performance of their basic functions, they faced the great risk of civil and criminal liability for unlawful content posted by third parties. As this risk threatened the potential of the Internet, various jurisdictions opted to promulgate legislation that granted ISP’s safe harbours from liability. The South African (RSA) response is Chapter XI of the Electronic Communications and Transactions Act (ECTA). The protection it provides is however not absolute. It is limited to ISP’s that are members of an Industry Representative Body (IRB) and those ISP’s must perform particular functions in relation to third party content in a certain manner to obtain limited liability. Due to the ECTA’s limited application and a lack of authority, the question is raised as to what is the liability of ISP’s for unlawful content posted by third parties? This dissertation pays particular attention to ISP liability for third party defamatory statements, hate speech, and obscene and indecent material. The role and characteristics of ISP’s in the functioning of the Internet is described. It is determined that a wide legal definition would be required to encompass the many roles they perform. The definition provided by the ECTA is wide and many different types of ISP can fall underneath it. This may have unintended consequences as entities may receive protection that the legislature did not intend. The appropriate laws in the United States of America (USA) and the United Kingdom are surveyed and suggestions as to the extent of ISP liability in circumstances where the ECTA does not apply are made. It is established that their position is uncertain due to difficulties in applying the law to the Internet. This could result in the law being applied incorrectly and ISP’s erroneously found liable. The ECTA’s threshold requirements limit the availability of the safe harbor provisions to ISP’s that are members of a recognised IRB. The IRB must comply with an extensive set of requirements to obtain recognition. The purpose of these requirements is to ensure that only responsible ISP’s obtain the protection provided by the act. After an examination of these requirements, their necessity is questioned as their purpose appears to be contrary to the logic of the safe harbours provided by the ECTA. The safe harbours are analysed and comparisons made to similar legislation that exists in the USA and the European Union (EU). It was established that the ECTA is a hybrid of the USA and EU legislation, and to a certain extent improves on them. It was suggested that the extent of ISP liability in relation to certain unlawful content is clearer under the ECTA. However, exceptions may exist in relation to hate speech and obscene and indecent content as a result of legislation that does not properly take the technology of the Internet into account. It was recommended that certain action be taken to correct this position to prevent any negative effects on the Internet industry and conflict with the objectives of the ECTA. The provision of limited liability contained in the ECTA is balanced with a notice and takedown procedure, which provides relief to victims of unlawful content. This procedure is analysed and it appears to be effective in providing relief. However, through an examination of concerns raised in relation to this type of procedure as it exists in the USA and the EU, it is suggested that certain flaws exist. The take-down procedure negatively effects the freedom of expression and the third party’s rights to due process. Further, the threshold requirements result in not all the users of the Internet being provided with the same remedies. It is recommended that certain action be taken to correct these flaws. The solution provided by the ECTA should be favoured over the uncertainty that existed before it promulgation. It may be necessary to correct particular flaws that exist. Certain recommendations are suggested in this regard and the concluding chapter.
- Full Text:
- Date Issued: 2010
The recognition and protection of the interest of landlords within the framework of the rental housing act 50 of 1999
- Authors: Klos, Tamara Amy
- Date: 2010
- Subjects: Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10221 , http://hdl.handle.net/10948/1171 , Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Description: This dissertation analyses the South African Rental Housing Act 50 of 1999 ("the RHA") with the aim of determining whether the RHA sufficiently protects the landlords‘ rights and interests as opposed to those of tenants (which it does indeed safeguard). Due to the current saturation of rental property in South Africa, landlords are no longer in an advantageous a position as before. In fact, the RHA was introduced to redress the imbalance caused by discrimination against tenants. However, times have changed. The researcher submits that the RHA needs to be re-examined in light perception of the landlord as a consumer. Having regard to both common and foreign law, the researcher identified the following four fundamental legal and practical rights on the part of the landlord: the right to freely contract; the right to safeguard financial interests; the right to safeguard proprietary interests; and the right to evict a defaulting tenant. The research reveals that the RHA does not give adequate recognition to these fundamental legal rights, and accordingly does not sufficiently protect the landlord as a consumer. In total nineteen recommendations how the RHA can adequately recognize and protect the landlord‘s interests are made.
- Full Text:
- Date Issued: 2010
- Authors: Klos, Tamara Amy
- Date: 2010
- Subjects: Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10221 , http://hdl.handle.net/10948/1171 , Landlord and tenant -- South Africa , Rent -- South Africa , Rental housing -- South Africa , Rental housing -- Law and legislation -- South Africa , Landlords -- South Africa
- Description: This dissertation analyses the South African Rental Housing Act 50 of 1999 ("the RHA") with the aim of determining whether the RHA sufficiently protects the landlords‘ rights and interests as opposed to those of tenants (which it does indeed safeguard). Due to the current saturation of rental property in South Africa, landlords are no longer in an advantageous a position as before. In fact, the RHA was introduced to redress the imbalance caused by discrimination against tenants. However, times have changed. The researcher submits that the RHA needs to be re-examined in light perception of the landlord as a consumer. Having regard to both common and foreign law, the researcher identified the following four fundamental legal and practical rights on the part of the landlord: the right to freely contract; the right to safeguard financial interests; the right to safeguard proprietary interests; and the right to evict a defaulting tenant. The research reveals that the RHA does not give adequate recognition to these fundamental legal rights, and accordingly does not sufficiently protect the landlord as a consumer. In total nineteen recommendations how the RHA can adequately recognize and protect the landlord‘s interests are made.
- Full Text:
- Date Issued: 2010
Unfair discrimination and dismissal based on age
- Thompson, David Martin Ogilvie
- Authors: Thompson, David Martin Ogilvie
- Date: 2010
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10218 , http://hdl.handle.net/10948/1287 , Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.
- Full Text:
- Date Issued: 2010
- Authors: Thompson, David Martin Ogilvie
- Date: 2010
- Subjects: Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10218 , http://hdl.handle.net/10948/1287 , Age discrimination in employment -- South Africa , Employees -- Dismissal of -- South Africa
- Description: Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.
- Full Text:
- Date Issued: 2010
A comparison of the South African and Namibian labour dispute resolution system
- Authors: Musukubili, Felix
- Date: 2009
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10207 , http://hdl.handle.net/10948/1040 , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Description: The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
- Full Text:
- Date Issued: 2009
- Authors: Musukubili, Felix
- Date: 2009
- Subjects: Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10207 , http://hdl.handle.net/10948/1040 , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Namibia , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Namibia
- Description: The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
- Full Text:
- Date Issued: 2009
Civil liability of an employer for injuries on duty
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Brandt, Denver Charles
- Date: 2009
- Subjects: Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10195 , http://hdl.handle.net/10948/1042 , Liability (Law) -- South Africa , Employers' liability -- South Africa , Labor laws and legislation -- South Africa
- Description: The workplace has evolved dramatically in the past decades. Technology has improved, innovative ways of utilising nuclear power have been developed, new chemicals have been introduced to the market and the adverse effects of other chemicals on both human health and safety and the environment have been discovered. This has influenced the nature of the workplace itself. While employees enjoy a common law right to a safe working environment and health and safety, state intervention currently provides restricted claims to an employee who has sustained injuries or contracted occupational diseases. This thesis explores the effect of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 which deprives an employee of its common law right to institute civil action against an employer for an injury sustained or disease contracted during the course and scope of employment. Furthermore, this thesis also explores the marriage between the Occupational Health and Safety Act 89 of 1993 and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as well as the position of ‘employee’ and ‘employer’ insofar as the scope and application of these two acts are concerned with specific reference to the position of labour broker employees. The use of indemnity clauses and its validity in South Africa will also be explored and discussed. This thesis also dedicates a chapter to the leading case authority of Jooste v Score Supermarket Trading (Pty) Ltd and its effect insofar as the enforcement and application of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is concerned. It is impossible to mention all the changes in the workplace that have occurred in the recent years, and this discussion therefore focuses on the current position of employees who have been deprived of their common law right to institute delictual action for damages resulting from an injury sustained while on duty as well as the impact of the current restrictive claims available to them. Alterations to existing approaches are also proposed to resurrect the common law right of employees to institute action against their employers. , Abstract
- Full Text:
- Date Issued: 2009
Critical analysis of the 2007 public service strike and its impact on the evolution of formalised collective bargaining in South Africa
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
- Authors: Bhe, Vuyisile
- Date: 2009
- Subjects: Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10192 , http://hdl.handle.net/10948/1043 , Collective bargaining -- South Africa , Dispute resolution (Law) -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Description: Section 213 of the Labour Relations Act defines ’strike’ as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and any reference to “work” this definition includes overtime work, whether it is voluntary or compulsory. According to Mcllroy: “As long as our society is divided between those who own and control the means of production and those who only have the ability to work, strikes will be inevitable because they are the ultimate means workers have of protecting themselves.” 1 The Constitutional Court justified the exclusion of a constitutional right to lock out and the inclusion of a constitutional right to strike by indicating that the right to strike is not equivalent to a right to lock out and is essential for workplace democracy. 2 The right to strike is essential to bolster collective bargaining and thereby to give employees the power to bargain effectively with employers. The employers on the According to the Constitutional Court employers enjoy greater social and economic power compared to individual workers and may exercise a wide range of power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace. To combat this and have a say in the workplace, the Constitutional Court held that “employees need to act in concert to provide them collectively with sufficient power to bargain effectively with employers and exercise collective power primarily through the mechanism of strike action”. The importance of the right to strike in creating workplace democracy is also reflected in a number of Labour Court and Labour Appeal Court judgments. other hand have economic strength that is used to bargain effectively. That is why the strike enjoys constitutional protection, whereas the lock-out does not. , Abstract
- Full Text:
- Date Issued: 2009
Critical analysis of the impact of the common law on African indigenous law of inheritance a case study of post colonial legislation in Zimbabwe
- Authors: Gwarinda, Tafira Albert
- Date: 2009
- Subjects: Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11110 , http://hdl.handle.net/10353/161 , Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Description: The study looks at the main features of African indigenous law of succession and inheritance in Zimbabwe. It draws a distinction between the forms of inheritance practised between the two major ethnic groups, the Shona and the Ndebele. Whilst the research was mainly aimed at these two groups an investigation into inheritance practice by the South African Zulu and Xhosa counterparts was also made. An investigation into the impact of western influence on succession and inheritance was made taking a look at colonial legislation and case law, the general deduction being that it was a vehicle for attaching customary law to a western type law. After independence there was the issue of the impact of constitutionalism and international human rights law on succession in post colonial Zimbabwe. These were tools for change by bringing in notions of equality between men and women, issues that were highlighted in the cornerstone case of Magaya v Magaya, which was in turn discussed in the light of the Mthemu v Letsela and Bhe trilogy of cases in South Africa. In the final chapter there is a discussion of possibilities of reform and the future of customary law in Zimbabwe the highlight here being conducting proper legal research to ascertain the true purpose of custom.
- Full Text:
- Date Issued: 2009
- Authors: Gwarinda, Tafira Albert
- Date: 2009
- Subjects: Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11110 , http://hdl.handle.net/10353/161 , Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Description: The study looks at the main features of African indigenous law of succession and inheritance in Zimbabwe. It draws a distinction between the forms of inheritance practised between the two major ethnic groups, the Shona and the Ndebele. Whilst the research was mainly aimed at these two groups an investigation into inheritance practice by the South African Zulu and Xhosa counterparts was also made. An investigation into the impact of western influence on succession and inheritance was made taking a look at colonial legislation and case law, the general deduction being that it was a vehicle for attaching customary law to a western type law. After independence there was the issue of the impact of constitutionalism and international human rights law on succession in post colonial Zimbabwe. These were tools for change by bringing in notions of equality between men and women, issues that were highlighted in the cornerstone case of Magaya v Magaya, which was in turn discussed in the light of the Mthemu v Letsela and Bhe trilogy of cases in South Africa. In the final chapter there is a discussion of possibilities of reform and the future of customary law in Zimbabwe the highlight here being conducting proper legal research to ascertain the true purpose of custom.
- Full Text:
- Date Issued: 2009
Dismissals within the context of collective bargaining
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
- Authors: Qotoyi, Thanduxolo
- Date: 2009
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10223 , http://hdl.handle.net/10948/1039 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Collective bargaining -- South Africa
- Description: Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.
- Full Text:
- Date Issued: 2009
Liberalisation and regulation of trade in the Southern African Development Community (SADC) : a critical analysis of the SADC trade protocol's provisions and its implementation
- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
- Full Text:
- Date Issued: 2009
- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
- Full Text:
- Date Issued: 2009
Re(viewing) the constitutional court's decision in Sidumo v Rustenburg Platinum Ltd
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009
Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
Sending and receiving: immunity sought by diplomats committing criminal offences
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
The consequences of unlawful and prohibited contracts of employment in labour law
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
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