Sexual harassment in employment
- Authors: Ristow, Liezel
- Date: 2004
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11062 , http://hdl.handle.net/10948/341 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.
- Full Text:
- Date Issued: 2004
- Authors: Ristow, Liezel
- Date: 2004
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11062 , http://hdl.handle.net/10948/341 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.
- Full Text:
- Date Issued: 2004
Substantive fairness of dismissal for misconduct
- Authors: Toba, Wilson
- Date: 2004
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11063 , http://hdl.handle.net/10948/355 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa
- Description: In the employment context employers may view certain conduct/behaviour committed by an employee or a group of employees to be repugnant and unacceptable resulting in the disciplinary action that may lead to a dismissal sanction taken against such employee or employees. Even though the employer has a right to discipline the employees for a contravention of a rule or a policy and even dismiss the employee/s involved, such a disciplinary action and dismissal must be based on a certain procedure where the principle of fairness must be adhered to. The Labour Relations Act 66 of 1995 (“the Act”) and Schedule 8 of the Code of Good Practice deals with the aspects of dismissals related to conduct and capacity, however, each case is unique, it has to be approached on its own merits. Schedule 8(3) states that, “formal procedures in disciplinary measures do not have to be invoked every time a rule is broken or a standard is not met”. It is therefore necessary that there should be a disciplinary code which guides the workers and the employers, it must be clear and be understood by all the parties. The disciplinary code of conduct serves as the foundation of good discipline because everybody knows the consequences of his/her contravention of those guidelines enumerated in the Code of Conduct. The Code of Good Practice under Schedule 8(3), states that “while employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”, so a very good relationship between the two parties is most important if there is to be stability and industrial peace in the workplace.
- Full Text:
- Date Issued: 2004
- Authors: Toba, Wilson
- Date: 2004
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11063 , http://hdl.handle.net/10948/355 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa
- Description: In the employment context employers may view certain conduct/behaviour committed by an employee or a group of employees to be repugnant and unacceptable resulting in the disciplinary action that may lead to a dismissal sanction taken against such employee or employees. Even though the employer has a right to discipline the employees for a contravention of a rule or a policy and even dismiss the employee/s involved, such a disciplinary action and dismissal must be based on a certain procedure where the principle of fairness must be adhered to. The Labour Relations Act 66 of 1995 (“the Act”) and Schedule 8 of the Code of Good Practice deals with the aspects of dismissals related to conduct and capacity, however, each case is unique, it has to be approached on its own merits. Schedule 8(3) states that, “formal procedures in disciplinary measures do not have to be invoked every time a rule is broken or a standard is not met”. It is therefore necessary that there should be a disciplinary code which guides the workers and the employers, it must be clear and be understood by all the parties. The disciplinary code of conduct serves as the foundation of good discipline because everybody knows the consequences of his/her contravention of those guidelines enumerated in the Code of Conduct. The Code of Good Practice under Schedule 8(3), states that “while employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”, so a very good relationship between the two parties is most important if there is to be stability and industrial peace in the workplace.
- Full Text:
- Date Issued: 2004
The consultation and other requirements of dismissal for operational reasons
- Authors: Dyakala, Maynard
- Date: 2004
- Subjects: Downsizing of organizations -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11040 , http://hdl.handle.net/10948/344 , Downsizing of organizations -- South Africa , Labor laws and legislation -- South Africa
- Description: Our employment law which originates from the common principles has in recent years undergone significant changes. Under common law the employers and employees capacity to regulate their relationship has always been limited. The recommendations of the Wiehahn Commission introduced amendments to the Labour Relations Act of 1956. The introduction of the unfair labour practice concept and the establishment of the Industrial Court was a direct consequence of the recommendation of the Wiehahn Commission. The Industrial Court together with the higher courts developed new principles regarding unfair labour practices. In the process, a wealth of unfair labour practice jurisprudence was developed by these courts. However, the unfair labour practice definition did not include dismissals. The coming into power of the democratic government played an important role in transforming our labour law system. After the Labour Relations Act 66 of 1995 was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed. The law on retrenchment forms an integral part of our law of dismissals. The South African labour market has in the past years been characterised by restructuring and consequently retrenchment of employees. In most cases, employer’s decisions to retrench were challenged by the employees and unions in our courts. Section 189 of the Labour Relations Act of 1995 stipulates procedures to be followed by an employer when contemplating dismissal of one or more employees for reasons based on operational requirements. The employer does not only have to follow the procedures set out in section 189 to render dismissals for operational reasons fair, but there must also be a valid reason to dismiss. The courts have always not been willing to second-guess the employer’s decision to retrench provided that the decision is made in good faith. Whilst section 189 deals with small-scale retrenchments, section 189A applies to large-scale retrenchments. These are employers who employ more than 50 employees and who contemplate retrenchment of more than the number of employees provided for in section 189(1)(a) or (b). Section 189A also introduced a facilitation process to be conducted in terms of regulations made by the Minister of Labour. The amendments to section 189 should be seen as an attempt to tighten the procedural aspect of retrenchments. The new law on retrenchments is a product of tough negotiations between the social partners at NEDLAC in which compromises were reached. There are still certain areas of concern to both labour and business. In those areas in which uncertainty still exists, the courts will be required to provide some guidance.
- Full Text:
- Date Issued: 2004
- Authors: Dyakala, Maynard
- Date: 2004
- Subjects: Downsizing of organizations -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11040 , http://hdl.handle.net/10948/344 , Downsizing of organizations -- South Africa , Labor laws and legislation -- South Africa
- Description: Our employment law which originates from the common principles has in recent years undergone significant changes. Under common law the employers and employees capacity to regulate their relationship has always been limited. The recommendations of the Wiehahn Commission introduced amendments to the Labour Relations Act of 1956. The introduction of the unfair labour practice concept and the establishment of the Industrial Court was a direct consequence of the recommendation of the Wiehahn Commission. The Industrial Court together with the higher courts developed new principles regarding unfair labour practices. In the process, a wealth of unfair labour practice jurisprudence was developed by these courts. However, the unfair labour practice definition did not include dismissals. The coming into power of the democratic government played an important role in transforming our labour law system. After the Labour Relations Act 66 of 1995 was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed. The law on retrenchment forms an integral part of our law of dismissals. The South African labour market has in the past years been characterised by restructuring and consequently retrenchment of employees. In most cases, employer’s decisions to retrench were challenged by the employees and unions in our courts. Section 189 of the Labour Relations Act of 1995 stipulates procedures to be followed by an employer when contemplating dismissal of one or more employees for reasons based on operational requirements. The employer does not only have to follow the procedures set out in section 189 to render dismissals for operational reasons fair, but there must also be a valid reason to dismiss. The courts have always not been willing to second-guess the employer’s decision to retrench provided that the decision is made in good faith. Whilst section 189 deals with small-scale retrenchments, section 189A applies to large-scale retrenchments. These are employers who employ more than 50 employees and who contemplate retrenchment of more than the number of employees provided for in section 189(1)(a) or (b). Section 189A also introduced a facilitation process to be conducted in terms of regulations made by the Minister of Labour. The amendments to section 189 should be seen as an attempt to tighten the procedural aspect of retrenchments. The new law on retrenchments is a product of tough negotiations between the social partners at NEDLAC in which compromises were reached. There are still certain areas of concern to both labour and business. In those areas in which uncertainty still exists, the courts will be required to provide some guidance.
- Full Text:
- Date Issued: 2004
The role of the trade union in post democratic South Africa
- Authors: Collins, Selwyn Charles
- Date: 2004
- Subjects: Labor unions -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11036 , http://hdl.handle.net/10948/354 , Labor unions -- South Africa , Labor policy -- South Africa
- Description: In South Africa, labour has played a central role in shaping the transition to democracy. It remained an open question as to whether labour could sustain it’s involvement during the period of consolidation after the first democratic elections. As was evident in other emerging democracies, economic liberalization often led to stagnation and high costs being imposed on workers, while weakening the state. South African trade unions thus faced formidable problems as they had to respond to rapid economic and industrial change. While being stubborn, South African trade unions remain adaptable enough to survive and grow into the 21st Century. In this dissertation, the writer examines the relevance of trade unions in contemporary South Africa and how they are coming to terms with the deregulated labour market, and the question of globalisation. We look at the emergence of new forms of collective bargaining, the growth of trade unions as partners in a changing workplace and the different ways trade unions are modernising themselves to attract new members. Labour when used as a collective force is capable of shaping democratization through the strategic use of power. Labour has the potential , through participation in negotiated compromises, to ensure that the costs of adjustments are not borne by workers alone. To this end, the South African trade union movement has developed innovative strategies and institutions.
- Full Text:
- Date Issued: 2004
- Authors: Collins, Selwyn Charles
- Date: 2004
- Subjects: Labor unions -- South Africa , Labor policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11036 , http://hdl.handle.net/10948/354 , Labor unions -- South Africa , Labor policy -- South Africa
- Description: In South Africa, labour has played a central role in shaping the transition to democracy. It remained an open question as to whether labour could sustain it’s involvement during the period of consolidation after the first democratic elections. As was evident in other emerging democracies, economic liberalization often led to stagnation and high costs being imposed on workers, while weakening the state. South African trade unions thus faced formidable problems as they had to respond to rapid economic and industrial change. While being stubborn, South African trade unions remain adaptable enough to survive and grow into the 21st Century. In this dissertation, the writer examines the relevance of trade unions in contemporary South Africa and how they are coming to terms with the deregulated labour market, and the question of globalisation. We look at the emergence of new forms of collective bargaining, the growth of trade unions as partners in a changing workplace and the different ways trade unions are modernising themselves to attract new members. Labour when used as a collective force is capable of shaping democratization through the strategic use of power. Labour has the potential , through participation in negotiated compromises, to ensure that the costs of adjustments are not borne by workers alone. To this end, the South African trade union movement has developed innovative strategies and institutions.
- Full Text:
- Date Issued: 2004
The unfair labour practice relating to promotion
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
- Authors: Abrahams, Dawood
- Date: 2004
- Subjects: Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11035 , http://hdl.handle.net/10948/329 , Unfair labor practices -- South Africa , Promotions -- South Africa , Labor laws and legislation -- South Africa
- Description: This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.
- Full Text:
- Date Issued: 2004
Unfair discrimination in employment
- Gixana-Khambule, Bulelwa Judith
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
- Authors: Gixana-Khambule, Bulelwa Judith
- Date: 2004
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11059 , http://hdl.handle.net/10948/359 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Description: In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
- Full Text:
- Date Issued: 2004
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
An appraisal of strike law in South Africa
- Authors: Crompton, Mark Stanley
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11038 , http://hdl.handle.net/10948/379 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: The recent amendments made to employment laws and in particular the rewriting of the South African Labour Relations Act has brought into focus the diverse and conflicting interests of employers and employees, which is a concern of labour law analysts. This appraisal of South African of strike law examines the statutory and judicially established labour law in regard to the phenomenon of collective industrial action by employees and the regulation of its occurrence. Historical developments in strike law are traced from the early 1900’s. A period of segregated trade unionism, led ultimately to the introduction of a more inclusive system of regulation, which has in turn been modified to bring the law into line with the new constitutional imperatives. Industrial action occurred, often unregulated and regardless of statutory limitations, and in particular that industrial action which related to mass protest action, now recognized as a specific form of strike. The now repealed Labour Relations Act 28 of 1956 is examined with regard to its strike regulating provisions, and identification of what were then new, unrecognized forms of strike action. It has allowed concepts and principles to be developed, under the unfair labour practice jurisdiction of the Industrial Court, much of which has been incorporated in the new Labour Relations Act. The legislation on strike law, which has been developed over the years, has been refined by the constitutional imperatives introduced to the national legal system. The relevant aspects of the new Constitution Act 108 of 1996 and its pervasive effect on strike law are examined. The right to strike in South African labour law, together with the protection of collective bargaining, is now constitutionally entrenched, and the right to strike is now accepted as a necessary adjunct to collective bargaining. It is necessary to give effect to the Constitution in national legislation, and the Labour Relations Act 66 of 1995 endeavours to accomplish this in chapter IV in regard to strike law, which, it could be argued, limits rather than gives expression to the right to strike. iii The Labour Relations Act of 1995 is then discussed with reference to protected and prohibited strikes, and unregulated strike action. It will be evident that the Act has endeavoured to contain unprocedural and productivity draining industrial action, by subjecting rights disputes to arbitration and Labour Court adjudication, subject to certain exceptions. The recourse to lock-out, as the employer’s prerogative and general corollary of strike action, is briefly discussed. The case law relating to strikes is discussed in respect of both the 1956 Act and the new Labour Relations Act of 1995. Among the issues explored are the strike provisions which have been developed in statute and labour related common law, such as the identification of issues in dispute, notice of strike, the issuing of ultimatums, the audi altarem partem rule and the court’s approach to protected and unprotected strikes. The intention is to determine trends resulting from amendments to the law and draw inferences regarding, in particular, the unregulated form of strikes that occur within the scope of the protections offered by the Act. It is the intention to determine whether the desired effect has been achieved by implementing legislative reforms in response to public policy considerations.
- Full Text:
- Date Issued: 2005
- Authors: Crompton, Mark Stanley
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11038 , http://hdl.handle.net/10948/379 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: The recent amendments made to employment laws and in particular the rewriting of the South African Labour Relations Act has brought into focus the diverse and conflicting interests of employers and employees, which is a concern of labour law analysts. This appraisal of South African of strike law examines the statutory and judicially established labour law in regard to the phenomenon of collective industrial action by employees and the regulation of its occurrence. Historical developments in strike law are traced from the early 1900’s. A period of segregated trade unionism, led ultimately to the introduction of a more inclusive system of regulation, which has in turn been modified to bring the law into line with the new constitutional imperatives. Industrial action occurred, often unregulated and regardless of statutory limitations, and in particular that industrial action which related to mass protest action, now recognized as a specific form of strike. The now repealed Labour Relations Act 28 of 1956 is examined with regard to its strike regulating provisions, and identification of what were then new, unrecognized forms of strike action. It has allowed concepts and principles to be developed, under the unfair labour practice jurisdiction of the Industrial Court, much of which has been incorporated in the new Labour Relations Act. The legislation on strike law, which has been developed over the years, has been refined by the constitutional imperatives introduced to the national legal system. The relevant aspects of the new Constitution Act 108 of 1996 and its pervasive effect on strike law are examined. The right to strike in South African labour law, together with the protection of collective bargaining, is now constitutionally entrenched, and the right to strike is now accepted as a necessary adjunct to collective bargaining. It is necessary to give effect to the Constitution in national legislation, and the Labour Relations Act 66 of 1995 endeavours to accomplish this in chapter IV in regard to strike law, which, it could be argued, limits rather than gives expression to the right to strike. iii The Labour Relations Act of 1995 is then discussed with reference to protected and prohibited strikes, and unregulated strike action. It will be evident that the Act has endeavoured to contain unprocedural and productivity draining industrial action, by subjecting rights disputes to arbitration and Labour Court adjudication, subject to certain exceptions. The recourse to lock-out, as the employer’s prerogative and general corollary of strike action, is briefly discussed. The case law relating to strikes is discussed in respect of both the 1956 Act and the new Labour Relations Act of 1995. Among the issues explored are the strike provisions which have been developed in statute and labour related common law, such as the identification of issues in dispute, notice of strike, the issuing of ultimatums, the audi altarem partem rule and the court’s approach to protected and unprotected strikes. The intention is to determine trends resulting from amendments to the law and draw inferences regarding, in particular, the unregulated form of strikes that occur within the scope of the protections offered by the Act. It is the intention to determine whether the desired effect has been achieved by implementing legislative reforms in response to public policy considerations.
- Full Text:
- Date Issued: 2005
Aspects of expert evidence in the criminal justice system
- Authors: Dumani, Msebenzi
- Date: 2005
- Subjects: Evidence, Expert , Cross-examination , Conduct of court proceedings
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10166 , http://hdl.handle.net/10948/435 , Evidence, Expert , Cross-examination , Conduct of court proceedings
- Description: The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a more or less closed list of exemptions. Stephen says that a witness’s opinion is “deemed to be irrelevant”. A witness may depose to the facts which he has observed, but he may not ordinarily state any inferences which he has drawn from those facts, or opinions founded upon facts of which he has no personal knowledge. The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is the function of a court to draw inferences and form its opinion from the facts; the witnesses give evidence as to the facts and the court forms its opinion from those facts. The opinion of an expert is admissible if it is relevant. It will be relevant if the witness’s skill, training or experience enables him materially to assist the court on matters in which the court itself does not usually have the necessary knowledge to decide. Where the topic is such that an ordinary judicial officer could be expected to be able, unassisted, to draw an inference, expert evidence is superfluous. In principle, there is no rule that a witness cannot give his opinion on an issue that the court has to decide ultimately. It is not experts alone who may give their opinions on ultimate issues but, in practice, there is a strong tendency to regard the evidence of lay persons on ultimate issues as constituting prima facie evidence only. If such lay testimony remains unchallenged, it may be of greater significance. It is generally true that relevant evidence is admissible and irrelevant evidence is inadmissible. At this stage the following question may be posed: is the opinion of any witness – whether from an expert or lay person – admissible evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in deciding the issue at hand? The basic answer is that relevance remains the fundamental test for admissibility. Certain issues simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to ballistics, engineering, chemistry, medicine, accounting and psychiatry, to mention only a few examples. The problem which arises is this: what is the best way of cross-examining the expert witness? Although the concept of skilful cross-examination conjures up the image of the crossexaminer destroying the expert witness in the witness box, total annihilation of expert evidence in court occurs only rarely. In reality, lawyers who are expected to cross-examine experts are often at a disadvantage in that they do not possess sufficient in-depth knowledge of the specific field of expertise to enable them to cross-examine the witness. Despite the expert nature of the evidence, it is suggested that the true basis of crossexamination should not be abandoned when dealing with experts. The effectiveness of crossexamination is enhanced by keeping the number of questions to a minimum as well as opening and concluding with good strong points. At the outset it should be mentioned that there is a distinction between matters of scientific fact and matters of mere opinion. On matters of scientific fact experts seldom differ but within the province of opinion one encounters difficulties. Lengthy cross-examination concerning expert’s theoretical knowledge is usually inefficient and should rarely be attempted. Cross-examination should be directed at pure logic or scientific analysis. The cross-examiner should always have relevant authority with him in court so as to confront the expert with these. The whole effect of the testimony of an expert witness can also be destroyed by putting the witness to test at the trial as to his qualifications, his experience and his ability and discriminations as an expert. A failure to meet this test renders his evidence nugatory.
- Full Text:
- Date Issued: 2005
- Authors: Dumani, Msebenzi
- Date: 2005
- Subjects: Evidence, Expert , Cross-examination , Conduct of court proceedings
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10166 , http://hdl.handle.net/10948/435 , Evidence, Expert , Cross-examination , Conduct of court proceedings
- Description: The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a more or less closed list of exemptions. Stephen says that a witness’s opinion is “deemed to be irrelevant”. A witness may depose to the facts which he has observed, but he may not ordinarily state any inferences which he has drawn from those facts, or opinions founded upon facts of which he has no personal knowledge. The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is the function of a court to draw inferences and form its opinion from the facts; the witnesses give evidence as to the facts and the court forms its opinion from those facts. The opinion of an expert is admissible if it is relevant. It will be relevant if the witness’s skill, training or experience enables him materially to assist the court on matters in which the court itself does not usually have the necessary knowledge to decide. Where the topic is such that an ordinary judicial officer could be expected to be able, unassisted, to draw an inference, expert evidence is superfluous. In principle, there is no rule that a witness cannot give his opinion on an issue that the court has to decide ultimately. It is not experts alone who may give their opinions on ultimate issues but, in practice, there is a strong tendency to regard the evidence of lay persons on ultimate issues as constituting prima facie evidence only. If such lay testimony remains unchallenged, it may be of greater significance. It is generally true that relevant evidence is admissible and irrelevant evidence is inadmissible. At this stage the following question may be posed: is the opinion of any witness – whether from an expert or lay person – admissible evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in deciding the issue at hand? The basic answer is that relevance remains the fundamental test for admissibility. Certain issues simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to ballistics, engineering, chemistry, medicine, accounting and psychiatry, to mention only a few examples. The problem which arises is this: what is the best way of cross-examining the expert witness? Although the concept of skilful cross-examination conjures up the image of the crossexaminer destroying the expert witness in the witness box, total annihilation of expert evidence in court occurs only rarely. In reality, lawyers who are expected to cross-examine experts are often at a disadvantage in that they do not possess sufficient in-depth knowledge of the specific field of expertise to enable them to cross-examine the witness. Despite the expert nature of the evidence, it is suggested that the true basis of crossexamination should not be abandoned when dealing with experts. The effectiveness of crossexamination is enhanced by keeping the number of questions to a minimum as well as opening and concluding with good strong points. At the outset it should be mentioned that there is a distinction between matters of scientific fact and matters of mere opinion. On matters of scientific fact experts seldom differ but within the province of opinion one encounters difficulties. Lengthy cross-examination concerning expert’s theoretical knowledge is usually inefficient and should rarely be attempted. Cross-examination should be directed at pure logic or scientific analysis. The cross-examiner should always have relevant authority with him in court so as to confront the expert with these. The whole effect of the testimony of an expert witness can also be destroyed by putting the witness to test at the trial as to his qualifications, his experience and his ability and discriminations as an expert. A failure to meet this test renders his evidence nugatory.
- Full Text:
- Date Issued: 2005
The contribution of the Labour Court to the development of strike law
- Nengovhela, Livhuwani Adolphus
- Authors: Nengovhela, Livhuwani Adolphus
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10191 , http://hdl.handle.net/10948/430 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Description: The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.
- Full Text:
- Date Issued: 2005
- Authors: Nengovhela, Livhuwani Adolphus
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10191 , http://hdl.handle.net/10948/430 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Description: The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.
- Full Text:
- Date Issued: 2005
The unfair labour practice relating to benefits
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
Discrimination against people with mental health problems in the workplace : a comparative analysis
- Authors: Lake, Rosalind
- Date: 2006
- Subjects: Employees -- Mental health People with disabilities -- Employment -- South Africa People with disabilities -- Employment -- Great Britain People with disabilities -- Employment -- Australia Discrimination in employment -- Law and legislation -- South Africa Discrimination in employment -- Law and legislation -- Australia Discrimination in employment -- Law and legislation -- Great Britain People with disabilities -- Legal status, laws, etc. -- South Africa People with disabilities -- Legal status, laws, etc. -- Australia People with disabilities -- Legal status, laws, etc. -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3705 , http://hdl.handle.net/10962/d1005712
- Description: For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
- Full Text:
- Date Issued: 2006
- Authors: Lake, Rosalind
- Date: 2006
- Subjects: Employees -- Mental health People with disabilities -- Employment -- South Africa People with disabilities -- Employment -- Great Britain People with disabilities -- Employment -- Australia Discrimination in employment -- Law and legislation -- South Africa Discrimination in employment -- Law and legislation -- Australia Discrimination in employment -- Law and legislation -- Great Britain People with disabilities -- Legal status, laws, etc. -- South Africa People with disabilities -- Legal status, laws, etc. -- Australia People with disabilities -- Legal status, laws, etc. -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3705 , http://hdl.handle.net/10962/d1005712
- Description: For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
- Full Text:
- Date Issued: 2006
Dismissal due to pregnancy
- Authors: Ledwaba, Lesetsa Joel
- Date: 2006
- Subjects: Sex discrimination in employment -- Law and legislation -- South Africa , Pregnant women -- Employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10190 , http://hdl.handle.net/10948/433 , Sex discrimination in employment -- Law and legislation -- South Africa , Pregnant women -- Employment -- Law and legislation -- South Africa
- Description: Previously, our workplaces were characterised by serious hardships emanating from labour laws which did not always cater for all areas of the employment relationship. South African female employees were without a clear legitimate remedial right precluding any severe violation and infringement to their fundamental rights resulting from their pregnancy; a task they did not opt for in the first place, but was instead, naturally imposed on them as a result of their gender category. Undoubtedly, many female employees were victims of unfair discrimination. The legislature therefore saw it fit to democratise the workplace by making rapid statutory interventions. As a result, a number of significant changes in various spheres of our labour laws were brought in. Amongst the greatly notable valuable changes was the introduction of the Employment Equity Act 55 of 1998. This piece of legislation has generally reformed our industrial society by bringing in the elimination of unfair discrimination and thereby enhancing the principle of equity in the workplace. The act has further touched a place within hearts of female employees for fear of discrimination as a result of their pregnancy status or any reasons related to their pregnancy. The act further codified Industrial Court decisions that were already established under the discrimination law jurisprudence from the Labour Relations Act 28 of 1956. The application of the provisions of the Act has made the employment relationship no longer to be a comfort zone for employers. These general changes to the law also impact on the dismissal law regime. The purpose of this treatise is to give an overview of the applicable legislation and contributions made by the Labour Courts in developing pregnancy dismissal and discrimination law. The Labour Courts have handed down few judgements that have helped in clarifying the provisions of both the current Labour Relations Act and the Employment Equity Act around the topic. One should hasten to say that this has never been a smooth process by the courts. It is further shown in this treatise that some of the court decisions were not well accepted in the light of other important considerations, such as the equality provisions of the Constitution. For the purpose of effectively dealing with this topic, this treatise contains a discussion of the historical context of discrimination law in the form of common-law position, and the discrimination law before the Bill of Rights and the Constitution. It then endeavours to identify the legislative provision of the Act when it comes to discrimination law provisions. At the same time the important court decisions that were made are identified and examined.
- Full Text:
- Date Issued: 2006
- Authors: Ledwaba, Lesetsa Joel
- Date: 2006
- Subjects: Sex discrimination in employment -- Law and legislation -- South Africa , Pregnant women -- Employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10190 , http://hdl.handle.net/10948/433 , Sex discrimination in employment -- Law and legislation -- South Africa , Pregnant women -- Employment -- Law and legislation -- South Africa
- Description: Previously, our workplaces were characterised by serious hardships emanating from labour laws which did not always cater for all areas of the employment relationship. South African female employees were without a clear legitimate remedial right precluding any severe violation and infringement to their fundamental rights resulting from their pregnancy; a task they did not opt for in the first place, but was instead, naturally imposed on them as a result of their gender category. Undoubtedly, many female employees were victims of unfair discrimination. The legislature therefore saw it fit to democratise the workplace by making rapid statutory interventions. As a result, a number of significant changes in various spheres of our labour laws were brought in. Amongst the greatly notable valuable changes was the introduction of the Employment Equity Act 55 of 1998. This piece of legislation has generally reformed our industrial society by bringing in the elimination of unfair discrimination and thereby enhancing the principle of equity in the workplace. The act has further touched a place within hearts of female employees for fear of discrimination as a result of their pregnancy status or any reasons related to their pregnancy. The act further codified Industrial Court decisions that were already established under the discrimination law jurisprudence from the Labour Relations Act 28 of 1956. The application of the provisions of the Act has made the employment relationship no longer to be a comfort zone for employers. These general changes to the law also impact on the dismissal law regime. The purpose of this treatise is to give an overview of the applicable legislation and contributions made by the Labour Courts in developing pregnancy dismissal and discrimination law. The Labour Courts have handed down few judgements that have helped in clarifying the provisions of both the current Labour Relations Act and the Employment Equity Act around the topic. One should hasten to say that this has never been a smooth process by the courts. It is further shown in this treatise that some of the court decisions were not well accepted in the light of other important considerations, such as the equality provisions of the Constitution. For the purpose of effectively dealing with this topic, this treatise contains a discussion of the historical context of discrimination law in the form of common-law position, and the discrimination law before the Bill of Rights and the Constitution. It then endeavours to identify the legislative provision of the Act when it comes to discrimination law provisions. At the same time the important court decisions that were made are identified and examined.
- Full Text:
- Date Issued: 2006
Non-renewal of a fixed-term employment contract
- Authors: Timothy, Lester Clement
- Date: 2006
- Subjects: Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10209 , http://hdl.handle.net/10948/431 , Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.
- Full Text:
- Date Issued: 2006
- Authors: Timothy, Lester Clement
- Date: 2006
- Subjects: Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10209 , http://hdl.handle.net/10948/431 , Fixed-term labor contracts -- South Africa , Labor laws and legislation -- South Africa
- Description: In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.
- Full Text:
- Date Issued: 2006
South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
The defence of inherent requirements of the job in unfair discrimination cases
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
- Authors: Kasika, Richard
- Date: 2006
- Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10236 , http://hdl.handle.net/10948/450 , Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Defense (Civil procedure) -- South Africa , Job analysis
- Description: The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
- Full Text:
- Date Issued: 2006
The extent to which review for unreasonableness is meaningfully incorporated in the promotion of Administrative Justice Act no. 3 of 2000
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
- Date Issued: 2006
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
- Date Issued: 2006
A comparative analysis of mental illness as a defence in criminal law
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
- Authors: Sitole, Sizakele Elias
- Date: 2007
- Subjects: Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10265 , http://hdl.handle.net/10948/843 , Insanity (Law) -- South Africa , Insanity defense -- South Africa , Mentally ill offenders -- South Africa , Mental health laws -- South Africa , Offenders with mental disabilities -- South Africa
- Description: This dissertation deals with the comparative analysis of mental illness as a defence in criminal law. The mental illness / insanity defence is deemed applicable when the accused does not have mens rea or lacks criminal responsibility or is afflicted by the inability to appreciate the wrongfulness of his act and act accordingly, at the time of the commission of the offence due to a pathological disturbance of the mental faculties. A review of the law in South Africa, English Law and United States of America law was done with regard to their approach in connection with the matter. The legal systems of South Africa, English Law and the United States of America were compared and analyzed because English Law and United States of America are developed countries and I decided to compare their approach to insanity defence with reference to South Africa, which is a developing country. Similarities were drawn between South Africa and English Law and this could be attributed to the fact that South African law emanated from English law. This is an important research topic on comparative analysis of mental illness as a defence in criminal law. The law applicable today in South Africa in respect of the defence of mental illness is combined in the provisions of the Criminal Procedure Act 51 of 1977, which replaced the criteria as set out in the M’Naghten rules and the irresistible impulse test. In all the three countries law that were compared the burden of proof has always been on the accused to prove his case on a balance of probabilities but in South Africa the position now is he who alleges must prove because of the legislative amendments. United States of America law allows for the forcible medication with drugs of the mentally ill defendants who are charged with crimes so that they can be fit to stand trial. This is the only country in the ones that were analyzed, which practices such a barbaric and inhuman acts. In the USA , the defendant has the burden of proving the defence of insanity by clear and convincing evidence, and the finding in not guilty by reason of insanity, English law, South African law has the same finding in insanity cases. The most common diagnosis used in support of a defence of insanity continues to be schizophrenia in South Africa and in English law system. In the English law system, the Home Secretary has the power to order defendant to be detained in a hospital on the basis of reports from at least two medical practitioners that the defendant is suffering from mental illness, if the minister is of the opinion that it is in the public interest to do so. In South Africa, the accused will be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers. The detention of those found not guilty by reason of insanity could be challenged under the Human Rights Act in English law because the legal definition of insanity is far wider than the medical concept of mental disorder. The Drs under English Law have to use the legal, not the medical understanding of the mental disorder. The placing of a burden of proof on the defendant may be challengeable under European Convention of Human Rights as contrary to the presumption of innocence that is protected under convention. Finally this is a controversial subject on mental illness but the position in South Africa has been clear for a long time, and I did not come across any deficiencies in our law. I submit that South African law position on mental illness is good.
- Full Text:
- Date Issued: 2007
A comparison of the labour dispute resolution systems of South Africa and Swaziland
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
- Authors: Majinda, Maseko Moses
- Date: 2007
- Subjects: Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10204 , http://hdl.handle.net/10948/833 , Labor disputes -- South Africa , Labor disputes -- Swaziland , Dispute resolution (Law) -- South Africa , Dispute resolution (Law) -- Swaziland , Mediation and conciliation, Industrial -- South Africa , Mediation and conciliation, Industrial -- Swaziland
- Description: History and Background: The history of statutory labour dispute resolution of South Africa dates back to 1909, when the Transvaal Disputes Prevention Act of 1909 was promulgated which applied only to the Transvaal. The Industrial Conciliation Act of 1924 established industrial councils and ad hoc conciliation boards and excluded black workers from the statutory definition of employee and this resulted in a dual industrial relations system that existed up to 1979. The history of statutory labour dispute resolution of Swaziland dates back to 1980 when the first Industrial Relations Act of 1980 was promulgated which established the first Industrial Court. Research Findings: The dispute resolution systems of South Africa and Swaziland contain both similarities and differences. Lessons for Swaziland include combining general and specific dispute resolution procedures, providing the right of a referring party to apply for condonation for late referral of a dispute, using conciliation-arbitration, making arbitration proceedings public hearings, influence of parties on the appointment of arbitrators, court adjudication, pre-dismissal arbitration, court adjudication by judges only, establishment of a constitutional court, full protection of protected strikes/ lockouts from interdicts, legalization of sympathy strikes, and removal of strikes/ lockout ballot. Lessons for South Africa include plural representation of parties at conciliation and arbitration, re-direction of some disputes by the Labour Court to the Commission for arbitration, reporting of labour disputes direct to the Head of State for determination.
- Full Text:
- Date Issued: 2007
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007