A trade union’s right to strike to acquire organisational rights
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
- Full Text:
- Date Issued: 2020
Application of section 197 of the Labour Relations Act in an insourcing context
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
- Full Text:
- Date Issued: 2020
Audio-Visual and Cyber Evidence in the Context of Criminal Law
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
- Full Text:
- Date Issued: 2020
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
- Full Text:
- Date Issued: 2020
Dismissal for racist remarks and racism
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
- Full Text:
- Date Issued: 2020
Disputes about the interpretation, application and breach of collective agreements
- Roelofse, Cornelius Johannes
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
- Full Text:
- Date Issued: 2020
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
Essential services in light of the 2014 Labour Law amendments
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
- Authors: Seshoka, Lesiba Job
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47427 , vital:39990
- Description: The topic of the treatise is “Essential Services in light of the 2014 Labour Law amendments”. It aims to investigate the state of essential services in the wake of the 2014 changes to the Labour Relations Act. As Pillay1 puts it, Furthermore, 15 years under our new essential services regime, it is time for reflection to preserve and improve what works and to fix what does not. The treatment of essential services is not playing as planned. In the meantime, notwithstanding the prohibition of strikes in essential services, they occur with disconcerting frequency, duration and intensity”. From these, one can deduce that prior to the changes effected in 2014, there have been serious challenges facing essential service personnel and employers which necessitated a change in legislation. The question, which this treatise tries to answer, is whether such change in legislation would in all likelihood addresses the challenges, which faced essential service employers and employees before it was enacted.
- Full Text:
- Date Issued: 2020
Evaluating the exclusion of certain categories of workers from the coverage of the unemployment insurance act 63 of 2001 and the consequences thereof
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
Labour dispute resolution in Uganda
- Chabo, Godsent, Ndimurwimo, Leah A
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
- Authors: Chabo, Godsent , Ndimurwimo, Leah A
- Date: 2020
- Subjects: Dispute resolution (Law) -- Uganda , Labor disputes -- Uganda Arbitration, Industrial -- Uganda Industrial relations -- Uganda
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48960 , vital:41566
- Description: The dissertation examines the Ugandan labour dispute resolution system by undertaking an analysis of international labour standards and a case study of South Africa’s labour dispute system. The study pronounces the legislative provisions of the Employment Act and Labour Disputes (Arbitration and Settlement) Act that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system. The study contends for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The dissertation further examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Uganda’s obligation to provide ADR systems that respond to the needs of the labour relations community. The study contends that ratifying particular ILO conventions creates obligations upon a country to comply and apply provisions of these conventions in national legislation. It is further argued that by having ratified those international labour standards that provide for ADR, Uganda assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is reliable and trusted by the countries citizens. A case study of South Africa is adopted with the primary focus on whether Uganda can learn from South African’s ADR system which is arguably more effective and efficient. South Africa has a labour dispute resolution system that has influenced majority of the Southern African Development Community (SADAC) law, hence prompting this study to borrow its ADR system predominantly the Commission for Conciliation Mediation and Arbitration (CCMA). Despite the differences between Uganda and South Africa, the study also indicates fundamental similarities. Preferably, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Industrial Court. This is far from the reality of the situation in Uganda. The study acknowledges that the Labour Disputes (Arbitration and Settlement) Act and Employment Act have put up provisions to establish a fast and effective labour dispute system, however, the gap exists at implementing these effective provisions in the Labour Disputes (Arbitration and Settlement) Act and the Employment Act. These lacunae in implementation make the attainment of an effective and efficient labour dispute resolution difficult. For this reason, the author proposes several remedial interventions in line with international labour standards and lessons from South Africa’s system that look to the future and the continued provision of fast, effective, and user-friendly ADR services. For Uganda to solve successfully apply these remedies, a strong political will as well as concerted efforts from all role players in the labour relations community is required.
- Full Text:
- Date Issued: 2020
Noise pollution at sea
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
- Authors: Karomo, Adelaide Aquiline
- Date: 2020
- Subjects: Marine pollution
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48091 , vital:40470
- Description: Marine species heavily rely on sound to perform day to day functions and, since the advent of industrialisation, anthropogenic noise in the marine environment has been on the increase and is expected to increase further as countries continue to develop. The impacts of anthropogenic noise on marine species have been deeply scrutinised especially by the international community and it has been established that this humaninduced noise at sea must be reduced to conserve marine biodiversity. A background of the major contributors to anthropogenic noise is discussed, as well as the international instruments regulating them. For instance the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as “the UNCLOS”),1 is discussed because it is the primary instrument regulating activities at sea and the protection of the marine environment and the species therein. South Africa has ratified the UNCLOS and is under a legal obligation to comply with its provisions by implementing them into domestic rules and regulations. Furthermore, the applicable global and regional instruments dealing with marine environmental protection from anthropogenic noise are weighed against the national South African legislation and this assessment serves the purpose of ascertaining the extent to which South Africa has complied with its international law obligation. The dissertation goes a step further by identifying and assessing the efforts made by foreign jurisdictions, specifically Australia, Greenland, the United Kingdom and the United States of America. This determination is meant to determine whether there are lessons South Africa can learn, if any, from these jurisdictions in order to improve its current marine environmental protection legislation in fulfilment of international law. The dissertation also shows that there is need to improve the South African environmental protection legislation by taking into account some of the developments made by international organisations, such as the International Maritime Organisation (hereinafter referred to as “the IMO”) and by foreign jurisdictions. These improvements to South African legislation would comprise of adopting activity-specific regulations, such as the IMO’s guidelines on minimising noise emitted by commercial shipping vessels and the United Kingdom’s Joint Nature Conservation Committee (hereinafter referred to as the “JNCC”) guidelines on seismic surveys. The regulations adopted by the international community are especially essential to fill the gap as far as the South African regulation of noise emitted by offshore renewable energy processes and naval operations are concerned.
- Full Text:
- Date Issued: 2020
Non-standard employment in terms of the labour relations act
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
Rethinking minimum sentence Legislation
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
The African Continental Free Trade Agreement in Context
- Authors: Conjwa, Siviwe
- Date: 2020
- Subjects: Customs unions -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47347 , vital:39849
- Description: The economic integration of the African continent has been an ideal pursued by most African states for a considerable number of years. This has been due to the notion that regional integration offers greater opportunities for developing states participating in global trade. Regional integration is regarded by some states as crucial to the alleviation of poverty on the African continent and, to this end, several African states have formed part of several regional blocs on the continent. The African Continental Free Trade Agreement (hereafter the AfCFTA) was signed in 2018, with the intention of removing barriers to the free movement of goods and services on the continent. The rationale behind the AfCFTA is that greater opportunities for the development of the African continent can be unlocked if the economies of the continent can be amalgamated into a single market. The AfCFTA is set to be the world’s largest free trade area, bringing together 55 states with a combined population of more than 1 billion people. This research contextualises the establishment of the AfCFTA within the greater context of the integration agenda of the African continent. Of particular significance is the role of the already existing Regional Economic Communities in the formulation of the AfCFTA, as well as the question as to whether global trade provisions regulating the creation of free trade areas have been complied with by the AfCFTA. The manner in which regional agreements are implemented by member states is also an important discussion that forms a part of this research. This is to ensure that some of the potential challenges in the implementation of the AfCFTA are laid bare, so as to ensure that the objectives thereof are attained as envisaged.
- Full Text:
- Date Issued: 2020
- Authors: Conjwa, Siviwe
- Date: 2020
- Subjects: Customs unions -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47347 , vital:39849
- Description: The economic integration of the African continent has been an ideal pursued by most African states for a considerable number of years. This has been due to the notion that regional integration offers greater opportunities for developing states participating in global trade. Regional integration is regarded by some states as crucial to the alleviation of poverty on the African continent and, to this end, several African states have formed part of several regional blocs on the continent. The African Continental Free Trade Agreement (hereafter the AfCFTA) was signed in 2018, with the intention of removing barriers to the free movement of goods and services on the continent. The rationale behind the AfCFTA is that greater opportunities for the development of the African continent can be unlocked if the economies of the continent can be amalgamated into a single market. The AfCFTA is set to be the world’s largest free trade area, bringing together 55 states with a combined population of more than 1 billion people. This research contextualises the establishment of the AfCFTA within the greater context of the integration agenda of the African continent. Of particular significance is the role of the already existing Regional Economic Communities in the formulation of the AfCFTA, as well as the question as to whether global trade provisions regulating the creation of free trade areas have been complied with by the AfCFTA. The manner in which regional agreements are implemented by member states is also an important discussion that forms a part of this research. This is to ensure that some of the potential challenges in the implementation of the AfCFTA are laid bare, so as to ensure that the objectives thereof are attained as envisaged.
- Full Text:
- Date Issued: 2020
The ground of discrimination in equal pay for work of equal value disputes
- Authors: Coetzee, Mandy Nadine
- Date: 2020
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48971 , vital:41569
- Description: The Employment Equity Act places a positive obligation on employers to promote workplaces free from unfair discrimination. This obligation is reinforced by section 6 of the Employment Equity Act, commonly referred to as the prohibition clause. The 2014 amendments to the Employment Equity Act specifically introduced provisions relating to Equal Pay for Work of Equal Value which prior to 2014, had no specific provisions to guide employees and employers in relation to claims of discrimination, relating to remuneration and terms and conditions of employment. As such employees had to rely directly on section 6(1) to bring such claims which presented significant problems and challenges with the onus. The second key amendment for our purposes relates to the inclusion of the arbitrary ground under section 6(1) as a ground on which discrimination is also prohibited. In addition to the insertion and specific inclusion into law, the burden of proof in section 11 was also amended and must be read with the prohibition clause. It is this aspect which now confronts us with challenges and divergent approaches by the Courts and the development of the broad versus narrow approach in dealing with the ground of discrimination.
- Full Text:
- Date Issued: 2020
- Authors: Coetzee, Mandy Nadine
- Date: 2020
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48971 , vital:41569
- Description: The Employment Equity Act places a positive obligation on employers to promote workplaces free from unfair discrimination. This obligation is reinforced by section 6 of the Employment Equity Act, commonly referred to as the prohibition clause. The 2014 amendments to the Employment Equity Act specifically introduced provisions relating to Equal Pay for Work of Equal Value which prior to 2014, had no specific provisions to guide employees and employers in relation to claims of discrimination, relating to remuneration and terms and conditions of employment. As such employees had to rely directly on section 6(1) to bring such claims which presented significant problems and challenges with the onus. The second key amendment for our purposes relates to the inclusion of the arbitrary ground under section 6(1) as a ground on which discrimination is also prohibited. In addition to the insertion and specific inclusion into law, the burden of proof in section 11 was also amended and must be read with the prohibition clause. It is this aspect which now confronts us with challenges and divergent approaches by the Courts and the development of the broad versus narrow approach in dealing with the ground of discrimination.
- Full Text:
- Date Issued: 2020
The international arbitration act and dispute resolution
- Authors: Mkorongo, Michelle
- Date: 2020
- Subjects: Dispute resolution (Law) -- Africa , International commercial arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49005 , vital:41592
- Description: Worldwide, states that had incorporated international standards of arbitration or drew influence from them, thrived in providing effective and efficient resolution of international commercial disputes. However, since 1965, there had been little to no increase in resolving international commercial disputes between private parties in South Africa, either through the court or arbitration. As a result, private parties were drawn to arbitrating in states that had incorporated these international standards and conformed to the aim of unifying arbitral regulation. This study aims to determine what South Africa’s response was in dealing with international commercial disputes and the development of arbitration as an appropriate dispute resolution mechanism. Based on the premise that arbitration is regarded as a popular dispute resolution mechanism when it comes to international trade transactions globally, this study will unpack why arbitration in South Africa did not reflect this premise. A thorough analysis of how international arbitration and its regulation developed globally will be conducted to show at what point uniform regulation came about. The results will indicate in what ways South Africa’s regulatory framework was insufficient to deal with international arbitration and will show how it took a considerable amount of time to regulate arbitration appropriately. Upon regulating international arbitration in 2017, the study will show other ways that South Africa can enhance itself in terms of providing a comprehensive regulatory framework and position itself as an ideal seat of arbitration in Africa.
- Full Text:
- Date Issued: 2020
- Authors: Mkorongo, Michelle
- Date: 2020
- Subjects: Dispute resolution (Law) -- Africa , International commercial arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49005 , vital:41592
- Description: Worldwide, states that had incorporated international standards of arbitration or drew influence from them, thrived in providing effective and efficient resolution of international commercial disputes. However, since 1965, there had been little to no increase in resolving international commercial disputes between private parties in South Africa, either through the court or arbitration. As a result, private parties were drawn to arbitrating in states that had incorporated these international standards and conformed to the aim of unifying arbitral regulation. This study aims to determine what South Africa’s response was in dealing with international commercial disputes and the development of arbitration as an appropriate dispute resolution mechanism. Based on the premise that arbitration is regarded as a popular dispute resolution mechanism when it comes to international trade transactions globally, this study will unpack why arbitration in South Africa did not reflect this premise. A thorough analysis of how international arbitration and its regulation developed globally will be conducted to show at what point uniform regulation came about. The results will indicate in what ways South Africa’s regulatory framework was insufficient to deal with international arbitration and will show how it took a considerable amount of time to regulate arbitration appropriately. Upon regulating international arbitration in 2017, the study will show other ways that South Africa can enhance itself in terms of providing a comprehensive regulatory framework and position itself as an ideal seat of arbitration in Africa.
- Full Text:
- Date Issued: 2020
The legality and enforceability of an automatic termination clause in the contract of employment
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
The national health insurance bill: a measure to realise the right to access health care services
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
The regulation of the use of cannibis in the workplace
- Authors: Oberem, stacy Lee
- Date: 2020
- Subjects: Cannabis -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47403 , vital:39978
- Description: This treatise considers the implications of the judgment in Minister of Justice and Constitutional Development v Prince (2018) ZACC 30 in the workplace. It includes a critical study of cases prior and post the judgment and identifies the gaps within those judgments. It will consider various legislation pertaining to the topic and the critical differences when it comes to testing for intoxication of alcohol versus cannabis. To conclude, it will consider the challenges of having a zero-tolerance policy in the workplace and provide recommendations to employer’s substance abuse policies specifically relating to the use of cannabis and its effects within the workplace.
- Full Text:
- Date Issued: 2020
- Authors: Oberem, stacy Lee
- Date: 2020
- Subjects: Cannabis -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47403 , vital:39978
- Description: This treatise considers the implications of the judgment in Minister of Justice and Constitutional Development v Prince (2018) ZACC 30 in the workplace. It includes a critical study of cases prior and post the judgment and identifies the gaps within those judgments. It will consider various legislation pertaining to the topic and the critical differences when it comes to testing for intoxication of alcohol versus cannabis. To conclude, it will consider the challenges of having a zero-tolerance policy in the workplace and provide recommendations to employer’s substance abuse policies specifically relating to the use of cannabis and its effects within the workplace.
- Full Text:
- Date Issued: 2020
The validity of dismissals for refusing to accept changes to terms and conditions of employment
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020