The Rotterdam Rules : a South African perspective
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
Balancing the educator's rights to fair labour practices and to strike with the right to education
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
Determining reasonableness in the light of Sidumo
- Govender, Mogisvaree Murugan
- Authors: Govender, Mogisvaree Murugan
- Date: 2016
- Subjects: Labor laws and legislation -- South Africa Employees -- Law and legislation -- South Africa Law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11648 , vital:26947
- Description: The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.
- Full Text:
- Date Issued: 2016
- Authors: Govender, Mogisvaree Murugan
- Date: 2016
- Subjects: Labor laws and legislation -- South Africa Employees -- Law and legislation -- South Africa Law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11648 , vital:26947
- Description: The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.
- Full Text:
- Date Issued: 2016
Domestication of the international-law prohibition of child soldiering
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
- Authors: Govender, Nikita
- Date: 2020
- Subjects: Child soldiers (International law) , International law , Humanitarian law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48982 , vital:41572
- Description: Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Full Text:
- Date Issued: 2020
The constitutional right of access to social security
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001
- Authors: Govindjee, Avinash
- Date: 2001
- Subjects: Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11061 , http://hdl.handle.net/10948/280 , Social security -- Law and legislation -- South Africa , South Africa -- Social policy
- Description: The inclusion of the right of access to social security in the Constitution did not meet with wholehearted approval in South Africa. This right, however, is of vital importance for the future upliftment of the country. The present social security system is based upon a clear distinction between social assistance and social insurance. There is a gap in current social security provisions in that the unemployed middle aged individual is not covered. Unemployment itself is one of the greatest challenges obscuring the implementation of a comprehensive social security system. The Constitutional right is to have ‘access’ to social security and the amount of resources at the state’s disposal is directly related to increasing this right, although it is true that a number of available resources are misspent. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to social security. The principles of solidarity and ubuntu must be cultivated so that national social development becomes a concern for all citizens. There are numerous problems facing South Africans in attaining the goal of access to social security – even if national social development does become a priority. Budgetary constraints, poverty, unemployment, HIV/Aids and foreigners are examples of these. By making social security a priority for everyone, existing ideas (almost all of which have merit) may be converted into long-term solutions for poverty and unemployment. Currently, numerous opportunities to salvage the situation are being overlooked as a result of the lack of a comprehensive and structured plan to better the access to social security. The constitutional right of access to social security is enforceable, although the jurisprudence in this field remains underdeveloped. Conditions are currently favourable, within the country and beyond its borders, for an imaginative and concerted attempt to be made to find potential solutions. It is possible for resources to be increased and for tax benefits to be incorporated for businesses which have the capacity to contribute. The issue of defence spending is controversial, but could hold the key to lowering unemployment. Should jobs be created, it is likely that they will initially be of a temporary nature. Consequently, provisions are needed to ensure some guarantee of income in the lacuna between when a job is lost and another found. Ultimately, one thing is certain: the constitutional right of access to social security will only be complete once the people who are recipients of this right make sacrifices and create corresponding duties for themselves to ensure that the next generation of inhabitants of this country are not facing similar problems. The state’s goal should be to ensure that the basic rights which all people enjoy in terms of the Constitution (in particular the other socio-economic rights) are guaranteed for the duration of their existence, even if the level of benefits received by such people is low.
- Full Text:
- Date Issued: 2001
Suspension in the disciplinary process
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
Strikes in the transport sector
- Authors: Grigor, Marius Hugo
- Date: 2013
- Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
- Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Marius Hugo
- Date: 2013
- Subjects: Strikes and lockouts -- South Africa , Arbitration, Industrial , Right to strike
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10300 , http://hdl.handle.net/10948/d1021100
- Description: Strike action by employees is globally used in matters of mutual interest in order to place pressure on employers to meet their demands although the right to strike is not contained in any of the International Labour Organisation’s (ILO) conventions or recommendations. Two conventions of the ILO are however relevant in the context of strikes and lockouts.1 The first is the Freedom of Association and Protection of the Right to Organise Convention 87 of 1948 and the second convention of importance is the Right to Organise and Collective Bargaining Convention 98 of 1949, both of which was ratified by South Africa and accordingly binds South Africa to comply with their provisions. The ILO appointed legal experts to assist the drafters of the Labour Relations Act,2 (LRA) in order to comply with these conventions. Furthermore section 3 of the LRA provides that the LRA must be interpreted in compliance with the international law obligations of South Africa. Section 27 of the Interim Constitution3 made provision for both the right to strike and the right of employers to lockout. In the proposed text of the final Constitution the recourse of the employer to lockout was not included. The text of the final Constitution was submitted to the Constitutional Court (CC) for certification in that it had to decide whether the new text of the final Constitution complied with the constitutional principles agreed to by the different political parties as the inviolable framework for the final Constitution. The CC delivered its judgment in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa4 and concluded that the omission of a right to lockout from the final Constitution does not conflict with constitutional principles. The CC did not agree with the argument, raised by Business South Africa, based on the proposition that the right of employers to lockout is the necessary equivalent to the right of workers to strike and that therefore, in order to treat workers and employers equally, both should be recognized in the new text. The result of this judgment is that employees’ right to strike is expressly protected by section 23 of the Constitution whilst the right of employers to lockout their employees is not expressly entrenched. The employers’ right is however protected by implication through the express protection of the right to bargain collectively in terms of section 23(5) of the Constitution and section 64 of the LRA.
- Full Text:
- Date Issued: 2013
Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
The plea of truth and public benefit as a defence to an action for defamation in South African law
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985
The criminalization of consensual sexual acts between children
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
Labour law implications of organisational restructuring
- Authors: Grootboom, Linda Henry
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11041 , http://hdl.handle.net/10948/303 , Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Description: It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.
- Full Text:
- Date Issued: 2003
- Authors: Grootboom, Linda Henry
- Date: 2003
- Subjects: Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11041 , http://hdl.handle.net/10948/303 , Labor laws and legislation -- South Africa , Organizational change -- South Africa
- Description: It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.
- Full Text:
- Date Issued: 2003
The position of asylum seekers in South African social security law
- Authors: Gugwana, Monde Barrington
- Date: 2015
- Subjects: Asylum, Right of -- South Africa , Social security -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6159 , vital:21044
- Description: The legal position of asylum seekers in South African social security system is more nuanced as a result of their transitional stay or status in the country. Asylum seekers may often be present in South Africa for a quite a long time but their social security entitlement is more restricted, and similar to that of temporary residents. For example, asylum seekers’ social security position is completely different from that of refugees. Refugees enjoy the same social security treatment similarly to South African citizens and permanent residents. Refugees qualify for the constitutionally entrenched right to have access to social security, including appropriate social assistance. Refugees also qualify for other socio-economic rights contained in the Constitution of the Republic of South Africa, 1996. The exclusion of asylum seekers occurs despite the fact they are one of the vulnerable groups of noncitizens. Such exclusion forces asylum seekers to live under precarious conditions. It is fundamentally accepted that the drafters of the Constitution included the right to have access to social security, in order to ensure that everyone, irrespective of nationality and citizenship enjoys an acceptable standard of living. It is also fundamentally accepted that the right to have access to social security contained in section 27(1)(c) is limited by section 27(2) of the Constitution. Section 27(2) requires the State to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The South African courts had on several occasions confirmed that the content of section 27(1)(c) is limited by section 27(2) of the Constitution and that the state cannot implement the right to have access to social security on demand. It had also been confirmed that the right to have access to social security is enforceable. This means the beneficiaries of this right may seek recourse from the courts of law when they are not satisfied about the progress relating to the implementation of the programmes relevant to the right to have access to social security. The right to have access to social security is also limited by section 36(1) of the Constitution. In the international arena, the right to have access to social security is recognised as the entitlement of everyone, but in some instances differential treatment can be made by the states. Such differential treatment should serve the legitimate state objective and all noncitizens should be treated equally.
- Full Text:
- Date Issued: 2015
- Authors: Gugwana, Monde Barrington
- Date: 2015
- Subjects: Asylum, Right of -- South Africa , Social security -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/6159 , vital:21044
- Description: The legal position of asylum seekers in South African social security system is more nuanced as a result of their transitional stay or status in the country. Asylum seekers may often be present in South Africa for a quite a long time but their social security entitlement is more restricted, and similar to that of temporary residents. For example, asylum seekers’ social security position is completely different from that of refugees. Refugees enjoy the same social security treatment similarly to South African citizens and permanent residents. Refugees qualify for the constitutionally entrenched right to have access to social security, including appropriate social assistance. Refugees also qualify for other socio-economic rights contained in the Constitution of the Republic of South Africa, 1996. The exclusion of asylum seekers occurs despite the fact they are one of the vulnerable groups of noncitizens. Such exclusion forces asylum seekers to live under precarious conditions. It is fundamentally accepted that the drafters of the Constitution included the right to have access to social security, in order to ensure that everyone, irrespective of nationality and citizenship enjoys an acceptable standard of living. It is also fundamentally accepted that the right to have access to social security contained in section 27(1)(c) is limited by section 27(2) of the Constitution. Section 27(2) requires the State to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of the right to have access to social security. The South African courts had on several occasions confirmed that the content of section 27(1)(c) is limited by section 27(2) of the Constitution and that the state cannot implement the right to have access to social security on demand. It had also been confirmed that the right to have access to social security is enforceable. This means the beneficiaries of this right may seek recourse from the courts of law when they are not satisfied about the progress relating to the implementation of the programmes relevant to the right to have access to social security. The right to have access to social security is also limited by section 36(1) of the Constitution. In the international arena, the right to have access to social security is recognised as the entitlement of everyone, but in some instances differential treatment can be made by the states. Such differential treatment should serve the legitimate state objective and all noncitizens should be treated equally.
- Full Text:
- Date Issued: 2015
The regulation of sick and incapacity leave in the public sector
- Authors: Gunguta, Thembeka Maureen
- Date: 2017
- Subjects: Sick leave -- Law and legislation -- South Africa Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16087 , vital:28319
- Description: The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.
- Full Text:
- Date Issued: 2017
- Authors: Gunguta, Thembeka Maureen
- Date: 2017
- Subjects: Sick leave -- Law and legislation -- South Africa Labor laws and legislation -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16087 , vital:28319
- Description: The Public Service is service delivery driven, and is dependent on the quality, skill and performance of the employees to carry through its business. It is therefore imperative that the policies and systems pertaining to human capital are effectively and efficiently managed. The Basic Conditions of Employment Act regulates the basic conditions of employment and states that employees’ may be absent from duty due to illness. The public sector uses the Determination on the Leave of Absence in the Public Service as a tool to regulate leave in the public sector. The Determination provides employees with 36 paid sick days to be utilised by an employee within a three-year cycle. In cases where an employee has exhausted the sick leave, the employer may grant Temporary Incapacity Leave, which is discretional. The Public Service Commission has a constitutional obligation to monitor the performance of the public sector and produce reports covering the human resources management practices. With regards to the management of leave in the public sector, the reports reveal the abuse of sick leave by employees, non-compliance and the in-effective management. The Department of Public Service and Administration then developed the PILIR as a guide to manage and administer sick and incapacity leave in the public sector. This treatise therefore, discusses the regulation of sick and incapacity leave in the public sector and investigates the extent to which the applicable legislative framework is effective. The discussion uses the Labour Court judgment in the matter between The Public Service Association & Others versus the PSCBC & Others as reference, and further evaluates the judicial jurisprudence to demonstrate the extent of contentions of the private sector employers by the employees. Furthermore, this treatise seeks to evaluate the extent of similarities or differences of the practices both the private sector and the municipalities. In conclusion, the treatise makes recommendations on the best practices that can be adopted by the public sector to turn the situation around.
- Full Text:
- Date Issued: 2017
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
Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
- Full Text:
- Date Issued: 2016
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
- Full Text:
- Date Issued: 2016
Labour rights of fishers in Namibia
- Hamukuaya, Nghililewanga Hashali
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
- Authors: Hamukuaya, Nghililewanga Hashali
- Date: 2018
- Subjects: Labor laws and legislation -- Namibia , Fishing -- law and legislation -- Namibia Employee rights -- Namibia Human rights -- Namibia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30061 , vital:30815
- Description: Fishers make an important contribution to the global economy and add value to a country’s gross domestic product. Their contribution is even more important in countries such as Namibia that rely heavily on the fishing industry as a source of income. The working conditions of fishers have recently come under scrutiny as a result of poor labour standards when compared to employees ashore. A background of the working conditions of fishers is provided illustrating the unique working conditions of the fishing industry. After that the international standards, namely those of the United Nations and the International Labour Organisation (hereinafter referred to as “the ILO”), are discussed and the challenges in the regulations of the condition of employment of fishers are pointed out. The ILO recently adopted the Work in Fishing Convention (hereinafter referred to as “the WIFC”) in 2007, which is the primary instrument applicable to fishers’ conditions of employment. Namibia has not ratified the Convention and, as a result, it has no legal obligation to comply with the standards it sets. The international standards were tested against the national legislation of Namibia. This was done to determine the extent of Namibia’s compliance with those standards. The dissertation revealed that, if Namibia were to immediately ratify the Convention it would not conform with the standards and, as a result, would be in breach of its international obligation. The dissertation takes a step further by comparing the approach taken in regulating the conditions of employment in Namibia to the approach taken in South Africa. The purpose of the comparison is to determine the lessons Namibia can learn, if any, to improve the regulation of the condition of employment for its fishers. The dissertation 7 reveals that there are lessons Namibia can learn from South Africa to improve the conditions of employment of the fishers. These lessons relate to introducing a bargaining council and, where necessary, statutory councils for the fishing industry. The introduction of a bargaining council and statutory councils would give organisations such as trade unions more power to negotiate a general standard across multiple sectors within the fishing industry. The standards that are negotiating could incorporate the standards provided in the WIFC even though Namibia has not ratified the convention.
- Full Text:
- Date Issued: 2018
The application of the hearsay rule in labour law proceedings
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
Legal status and protection of animals in South Africa
- Authors: Hartwig, Wendy
- Date: 2012
- Subjects: Human-animal relationships -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11118 , http://hdl.handle.net/10353/515
- Description: The animal welfare legislation that is discussed in this Dissertation is just a sample of the available legislation from the chosen foreign jurisdictions and South Africa. The chosen foreign jurisdictions were chosen as a lens to gain a needed perspective on South African animal welfare legislation. The legislation chosen for discussion falls within particular categories that are discussed fully in the later chapters.i Despite the fact that the animal rights and animal welfare movements are recorded to date back as far as 500B.C, the majority of jurisdictions throughout the world still consider animals to be property that can be bought, traded, hunted and after they are killed, their remains kept as trophies or souvenirs. Within these jurisdictions (which includes South Africa and the other four chosen foreign jurisdictions – Kenya, India, Switzerland and the United States of America) there is a demonstrated lack of proper enforcement of the animal welfare/animal anti-cruelty legislation, regulations and industry rules, which is made worse by the actions of uncaring, abusive and/or ignorant people. South Africa is no better or worse to the four chosen jurisdictions in that it has similar anti-cruelty/animal welfare legislation. The lack of proper enforcement of this animal welfare legislation in South Africa should be of great concern as many studies have indicated that there is a link between animal abuse/cruelty and ‘human’ abuse. The same studies also indicate that animal abusers are at a greater risk of becoming violent criminals or of committing a violent crime. For example, the Federal Bureau of Investigation has noted that most serial killers in the USA had a history of torturing, abusing and killing animals before they moved on to torturing, abusing and/or killing humans in their adult life. Needed changes to the animal welfare legislation and how people view animals should be made in South Africa to ensure that welfare of animals is protected. For example, the Government could educate people about animal welfare in order to overcome any ignorance that may be the cause of animal pain and abuse, as well as strengthening existing animal welfare legislation. The eradication of ignorance, as well as a necessary change in the current animal welfare legislation, will help to create a real change in how people view and treat i Chapter 5 and 6. [iii] animals. People will come to realise that animals exist in their own right and that they were not created to serve or to be exploited by man.
- Full Text:
- Date Issued: 2012
- Authors: Hartwig, Wendy
- Date: 2012
- Subjects: Human-animal relationships -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11118 , http://hdl.handle.net/10353/515
- Description: The animal welfare legislation that is discussed in this Dissertation is just a sample of the available legislation from the chosen foreign jurisdictions and South Africa. The chosen foreign jurisdictions were chosen as a lens to gain a needed perspective on South African animal welfare legislation. The legislation chosen for discussion falls within particular categories that are discussed fully in the later chapters.i Despite the fact that the animal rights and animal welfare movements are recorded to date back as far as 500B.C, the majority of jurisdictions throughout the world still consider animals to be property that can be bought, traded, hunted and after they are killed, their remains kept as trophies or souvenirs. Within these jurisdictions (which includes South Africa and the other four chosen foreign jurisdictions – Kenya, India, Switzerland and the United States of America) there is a demonstrated lack of proper enforcement of the animal welfare/animal anti-cruelty legislation, regulations and industry rules, which is made worse by the actions of uncaring, abusive and/or ignorant people. South Africa is no better or worse to the four chosen jurisdictions in that it has similar anti-cruelty/animal welfare legislation. The lack of proper enforcement of this animal welfare legislation in South Africa should be of great concern as many studies have indicated that there is a link between animal abuse/cruelty and ‘human’ abuse. The same studies also indicate that animal abusers are at a greater risk of becoming violent criminals or of committing a violent crime. For example, the Federal Bureau of Investigation has noted that most serial killers in the USA had a history of torturing, abusing and killing animals before they moved on to torturing, abusing and/or killing humans in their adult life. Needed changes to the animal welfare legislation and how people view animals should be made in South Africa to ensure that welfare of animals is protected. For example, the Government could educate people about animal welfare in order to overcome any ignorance that may be the cause of animal pain and abuse, as well as strengthening existing animal welfare legislation. The eradication of ignorance, as well as a necessary change in the current animal welfare legislation, will help to create a real change in how people view and treat i Chapter 5 and 6. [iii] animals. People will come to realise that animals exist in their own right and that they were not created to serve or to be exploited by man.
- Full Text:
- Date Issued: 2012
A critical analysis of the deductibility of audit fees
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013
- Authors: Hattingh, Leon
- Date: 2013
- Subjects: Auditing -- Fees , Tax deductions
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10292 , http://hdl.handle.net/10948/d1020376
- Description: The strict and narrow scope of the general deduction formula may result in taxpayers being denied deductions for business expenditure, which are clearly and legitimately incurred in the course of operating their businesses, which in turn will result in an increase in tax costs, an important component of business costs. Although audit fees often fail the deductibility test, in general they are regarded by taxpayers as automatically deductible despite the fact that such fees were not incurred in the production of income. The deductibility of audit fees reached the High Court recently for the first time in the MTN case. It was argued by the South African Revenue Service (SARS) in this case that audit fees should never been allowed as a deduction because the role of an auditor does not relate to the production of income and that an auditor’s duty is restricted to verification of financial information ex post facto for the benefit of investors, creditors and other users of the financial information. The Court held that statutory audit fees should be deductible relying on the basis of the time spent during the audit in verifying deductible and non-deductible income. It is concluded by the author that law which creates uncertainty needs to be updated in keeping with the Government’s intention of creating a business environment in order to promote commerce and entrepreneurship. It is therefore proposed that all audit fees relating to statutory audits should be declared as a specific statutory deduction to ensure legal certainty.
- Full Text:
- Date Issued: 2013