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After the Labour Relations Act 66 of 1995 was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed.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
An evaluation of the questions posed to child witnesses in court to determine whether they are developmentally appropriate
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
The impact of multimodal forms of transport on a cargo carrier's liability
- Authors: Etape, Nnane Roland
- Date: 2012
- Subjects: Containerization , Unitized cargo systems
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10251 , http://hdl.handle.net/10948/d1020176
- Description: International multimodal transport continues to grow exponentially, while the relevant international legal framework becomes increasingly fragmented and complex. The establishment of a widely acceptable uniform international legal framework for multimodal transport contracts has proven to be extremely difficult, in spite of the various attempts initiated by some international organizations. Owing to the increasing use of containers to consolidate cargo, multimodal transport practice has become inevitable in the field of international trade based on its numerous advantages over the traditional unimodal carriage practices. Therefore, the urgent need of an internationally legal instrument to govern liability issues arising from multimodal carriage transactions is highly requested by trading parties. This research, however, present the difficulties involve when trying to establish liability issues arising from multimodal carriage claims and the impact it has on contracting parties who are never certain on which regime their contracts are based, instead depends on already existing unimodal liability regimes to sort out their disputes. The strengths and weaknesses of the two most recent attempts at producing a uniform legal regime for multimodal transport namely: The United Nations Convention on International Multimodal Transport of Goods 1980 (The UN Convention of 1980) and The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) are also examined in this research as none of these attempts appears to be a tenable solution. However, in the absence of a truly accepted international uniform legal regime for multimodal transport contracts, some nations, regional and sub-regional laws and regulations on multimodal transport contracts have been initiated. Despite the recognition of the Rotterdam Rules in certain jurisdictions, it will probably fail to achieve the aim of uniformity as intended because it’s merely a “maritime-plus” Convention. With the continuous development of containerization, there is an imperative need to have a multimodal transport convention which is broad enough in scope to govern the rights and liabilities of all parties in a multimodal carriage contracts, including inland carriers and their contractors or sub-carriers (referred to as performing parties) in the new Convention.
- Full Text:
- Date Issued: 2012
- Authors: Etape, Nnane Roland
- Date: 2012
- Subjects: Containerization , Unitized cargo systems
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10251 , http://hdl.handle.net/10948/d1020176
- Description: International multimodal transport continues to grow exponentially, while the relevant international legal framework becomes increasingly fragmented and complex. The establishment of a widely acceptable uniform international legal framework for multimodal transport contracts has proven to be extremely difficult, in spite of the various attempts initiated by some international organizations. Owing to the increasing use of containers to consolidate cargo, multimodal transport practice has become inevitable in the field of international trade based on its numerous advantages over the traditional unimodal carriage practices. Therefore, the urgent need of an internationally legal instrument to govern liability issues arising from multimodal carriage transactions is highly requested by trading parties. This research, however, present the difficulties involve when trying to establish liability issues arising from multimodal carriage claims and the impact it has on contracting parties who are never certain on which regime their contracts are based, instead depends on already existing unimodal liability regimes to sort out their disputes. The strengths and weaknesses of the two most recent attempts at producing a uniform legal regime for multimodal transport namely: The United Nations Convention on International Multimodal Transport of Goods 1980 (The UN Convention of 1980) and The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) are also examined in this research as none of these attempts appears to be a tenable solution. However, in the absence of a truly accepted international uniform legal regime for multimodal transport contracts, some nations, regional and sub-regional laws and regulations on multimodal transport contracts have been initiated. Despite the recognition of the Rotterdam Rules in certain jurisdictions, it will probably fail to achieve the aim of uniformity as intended because it’s merely a “maritime-plus” Convention. With the continuous development of containerization, there is an imperative need to have a multimodal transport convention which is broad enough in scope to govern the rights and liabilities of all parties in a multimodal carriage contracts, including inland carriers and their contractors or sub-carriers (referred to as performing parties) in the new Convention.
- Full Text:
- Date Issued: 2012
The efficacy of the United Nations in conflict resolution: a study of the response of the security council to the Darfur conflict in the Sudan
- Authors: Fabrice, Tambe Endoh
- Date: 2012
- Subjects: Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11119 , http://hdl.handle.net/10353/d1006233 , Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Description: Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
- Full Text:
- Date Issued: 2012
- Authors: Fabrice, Tambe Endoh
- Date: 2012
- Subjects: Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11119 , http://hdl.handle.net/10353/d1006233 , Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Description: Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
- Full Text:
- Date Issued: 2012
Incapacity for poor work performance in the education sector
- Authors: Faker, Mogamat Salie
- Date: 2014
- Subjects: Capacity and disability , Employees -- Dismissal of , Employees -- Rating of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10252 , http://hdl.handle.net/10948/d1020209
- Description: According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".
- Full Text:
- Date Issued: 2014
- Authors: Faker, Mogamat Salie
- Date: 2014
- Subjects: Capacity and disability , Employees -- Dismissal of , Employees -- Rating of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10252 , http://hdl.handle.net/10948/d1020209
- Description: According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".
- Full Text:
- Date Issued: 2014
A critical examination of the regulation of fixed term employment services under South African Labour Laws
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
- Authors: Faku, Xolisa
- Date: 2018
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/17316 , vital:40937
- Description: South Africa is the most unequal society on the planet, overwhelming Brazil, with a critical increment in wage inequalities. In a quest to reduce unemployment, this research is at the focal point of our nation's activity emergency. In any case, there ought to be components to ensure representation against oppressive work rehearses. The Labour Relations Act denoted a noteworthy change in South Africa's statutory modern relations framework. Following the progress to political majority rule government, the LRA embodied the new government's means to remake and democratize the economy and society as connected in the work relations field. Specifically, it presented new organizations went for giving managers and labourers a chance to break with the serious adversarialism that portrayed their relations before. In extending the equitable change, the Labour Relations Act which offered ascend to the foundation of the National Economic Development and Labour Council (NEDLAC) appeared on 18 February 1995, in an offer to add authenticity and straightforwardness to the financial basic leadership process. This research will investigate the law representing fixed term employment in South Africa. It will further give an investigation of the legitimate framework of fixed term representative keeping in mind the end goal to decide if it advances not too bad work in South Africa. This investigation intends to call attention to any substantive and procedural imperfections that might be accessible in the law. The study will likewise be taking the potential lessons which can be gained from different nations with comparative Fixed-term work challenges i.e. Namibia. This implies the examination will survey the current zone of law and propose an alternate approach. This will be finished by investigating important case law and enactments which secure settled term business. In certainty, the investigation intends to give new point of view regarding the matter of fixed term work and proffer a few changes to the law.
- Full Text:
- Date Issued: 2018
The adoption of a police and judicial co-operation regime for the African Union
- Authors: Fazekas, Boglar
- Date: 2015
- Subjects: Law enforcement -- Africa , Judicial assistance -- Africa , Criminal justice, Administration of -- Africa , Crime prevention -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4440 , vital:20601
- Description: In 1991 the Treaty enacting the African Economic Community (AEC)1 was signed by the African Heads of State and Government.2 The AEC aims to establish regional free markets that would then be transformed into a continent-wide single market in six subsequent stages enabling the free movement of persons, goods, services, and capital until 2025 at the latest.3 However, to make sure that the free movement of persons in Africa would not also become a "free flow of criminals", the installation of a common market will require intensified police and judicial co-operation, information exchange and external border controls. 1 Treaty Establishing the African Economic Community adopted by the Heads of State and Government of Member States of the Organisation of African Unity in Abuja, Nigeria, 3 June 1991. 2 Art. 6(1) Treaty Establishing the African Economic Community. 3 Arts. 4(2)(h) and 4(2)(i) Treaty Establishing the African Economic Community. Furthermore, the age of globalisation calls into question the traditional concepts of sovereignty. Nowadays individual states are often unable to supervise their complete territory and battle to guard their borders against unwanted goods, people and ideas. Many facets of globalisation - including fast technological development and social and economic interaction - encourage governments to cooperate in order to try to achieve objectives that, acting on their own, they may not believe they can accomplish. Or to express the same thought in its negative sense: to fight unwanted consequences of this development, acting on their own, the states may not be able to achieve. This means that sooner or later the African States will have to address the problem of how to develop a police and judicial regime in criminal matters in order to fight against organised transnational crime. The question therefore is not whether the African States should engage in police and judicial co-operation, but rather what form it should take. The aim of this master treatise is to define the cornerstones of a possible future adoption of a police and judicial regime for the African Union (AU). There are numerous police and judicial co-operations around the world of various types so to make the task more manageable this treaty looks at the European Union (EU) in some detail and uses it as an example or as a guideline to sketch out a possible development of a police and judicial co-operation within the AU. This is for the reason that the EU has succeeded in creating a sophisticated regime of police and judicial co-operation and thus serves as a model of how co-operation levels can be created, handled, and preserved. The EU also serves as an example of how certain obstacles can make co-operation difficult or even prevent efforts for an effective transnational police and judicial co-operation. However, the current EU is the result of the specific circumstances in which its Member States and organs have responded to the economic and political changes they have been faced with. The AU has to operate amidst a political setting and various other circumstances that are very different. As a result the police and judicial co-operation regime of the AU will be very different from the EU model. This treatise argues that due to the vast number of participating states in the AU and the AU's decision-making practice, the continental level is not an appropriate point of departure for the AU to adopt a police and judicial co-operation regime. Police and judicial co-operation within the AU will at first have to be pursued at a sub-regional level. The co-operation should start at the already subdivided Regional Economic Communities (RECs) established by the AEC. Only in time, if at all, will the sub-regional markets be prepared to merge into a continent-wide integration. This is why at the present time the AU will have to accept a mere supervising and stimulating part in pursuing the ultimate objective of developing a police and judicial co-operation on a continent-wide level. Furthermore, this treatise assesses that the huge number of economic, social, and political challenges impair the AU's action ability with the result that it will not be able to establish a supranational legal body comparable to that of the EU in the near future. Also, the African Heads of State and Government are too interested in keeping their sovereign powers to themselves. This is why in Africa integration is more likely to be achieved with an intergovernmental approach. Therefore, police and judicial co-operation should first be exercised by means of informal meetings of the Interior and Justice Ministers and any resulting acts should be classified as (traditional) public international law. This is not to imply that the AU has no role to play here, for said meetings will have to be coordinated and supervised. In order to do justice to its supervising role it is necessary to empower the organs of the AU. This treatise analyses that for the AU to establish an efficient institutional framework, it is extremely important that the Assembly's monopoly over proposing legislation and establishing new organs is changed. Consensus decisions between fifty-four Member States would in an optimal case be replaced by a system where no organ is in total control. Finally, this treatise emphasises the necessity to push ahead with the development of the regional free markets as envisioned by the AEC. Similar to the development in the EU, this will bring about new challenges in combating new types of transnational crimes. This treatise demonstrates that this challenge might bring the necessary momentum to formally introduce police and judicial co-operation in criminal matters, usually a high policy area, on the agenda of the AU. In conclusion, this treatise shows that co-operation in such a sensitive area as security policy first and foremost needs a sufficient amount of trust between the decision makers of the involved states. To develop this necessary trust and the processes building upon this, this treatise argues that a regular meeting between the Interior and Justice Ministers, either inside or outside the framework of the AU, should be launched. Through these meetings the AU could gradually develop a platform for discussion in the area of criminal law and thereby slowly intensify its information exchange and operational co-operation. The history of the EU has shown that the development of a supranational legal system first and foremost requires mutual trust in each other's respective legal systems. Trust is generated by communication in an informal atmosphere. Therefore, this treatise argues that a colloquial intergovernmental co-operation within the field of criminal law is the correct approach for the AU to develop a police and judicial co-operation in criminal matters.
- Full Text:
- Date Issued: 2015
- Authors: Fazekas, Boglar
- Date: 2015
- Subjects: Law enforcement -- Africa , Judicial assistance -- Africa , Criminal justice, Administration of -- Africa , Crime prevention -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4440 , vital:20601
- Description: In 1991 the Treaty enacting the African Economic Community (AEC)1 was signed by the African Heads of State and Government.2 The AEC aims to establish regional free markets that would then be transformed into a continent-wide single market in six subsequent stages enabling the free movement of persons, goods, services, and capital until 2025 at the latest.3 However, to make sure that the free movement of persons in Africa would not also become a "free flow of criminals", the installation of a common market will require intensified police and judicial co-operation, information exchange and external border controls. 1 Treaty Establishing the African Economic Community adopted by the Heads of State and Government of Member States of the Organisation of African Unity in Abuja, Nigeria, 3 June 1991. 2 Art. 6(1) Treaty Establishing the African Economic Community. 3 Arts. 4(2)(h) and 4(2)(i) Treaty Establishing the African Economic Community. Furthermore, the age of globalisation calls into question the traditional concepts of sovereignty. Nowadays individual states are often unable to supervise their complete territory and battle to guard their borders against unwanted goods, people and ideas. Many facets of globalisation - including fast technological development and social and economic interaction - encourage governments to cooperate in order to try to achieve objectives that, acting on their own, they may not believe they can accomplish. Or to express the same thought in its negative sense: to fight unwanted consequences of this development, acting on their own, the states may not be able to achieve. This means that sooner or later the African States will have to address the problem of how to develop a police and judicial regime in criminal matters in order to fight against organised transnational crime. The question therefore is not whether the African States should engage in police and judicial co-operation, but rather what form it should take. The aim of this master treatise is to define the cornerstones of a possible future adoption of a police and judicial regime for the African Union (AU). There are numerous police and judicial co-operations around the world of various types so to make the task more manageable this treaty looks at the European Union (EU) in some detail and uses it as an example or as a guideline to sketch out a possible development of a police and judicial co-operation within the AU. This is for the reason that the EU has succeeded in creating a sophisticated regime of police and judicial co-operation and thus serves as a model of how co-operation levels can be created, handled, and preserved. The EU also serves as an example of how certain obstacles can make co-operation difficult or even prevent efforts for an effective transnational police and judicial co-operation. However, the current EU is the result of the specific circumstances in which its Member States and organs have responded to the economic and political changes they have been faced with. The AU has to operate amidst a political setting and various other circumstances that are very different. As a result the police and judicial co-operation regime of the AU will be very different from the EU model. This treatise argues that due to the vast number of participating states in the AU and the AU's decision-making practice, the continental level is not an appropriate point of departure for the AU to adopt a police and judicial co-operation regime. Police and judicial co-operation within the AU will at first have to be pursued at a sub-regional level. The co-operation should start at the already subdivided Regional Economic Communities (RECs) established by the AEC. Only in time, if at all, will the sub-regional markets be prepared to merge into a continent-wide integration. This is why at the present time the AU will have to accept a mere supervising and stimulating part in pursuing the ultimate objective of developing a police and judicial co-operation on a continent-wide level. Furthermore, this treatise assesses that the huge number of economic, social, and political challenges impair the AU's action ability with the result that it will not be able to establish a supranational legal body comparable to that of the EU in the near future. Also, the African Heads of State and Government are too interested in keeping their sovereign powers to themselves. This is why in Africa integration is more likely to be achieved with an intergovernmental approach. Therefore, police and judicial co-operation should first be exercised by means of informal meetings of the Interior and Justice Ministers and any resulting acts should be classified as (traditional) public international law. This is not to imply that the AU has no role to play here, for said meetings will have to be coordinated and supervised. In order to do justice to its supervising role it is necessary to empower the organs of the AU. This treatise analyses that for the AU to establish an efficient institutional framework, it is extremely important that the Assembly's monopoly over proposing legislation and establishing new organs is changed. Consensus decisions between fifty-four Member States would in an optimal case be replaced by a system where no organ is in total control. Finally, this treatise emphasises the necessity to push ahead with the development of the regional free markets as envisioned by the AEC. Similar to the development in the EU, this will bring about new challenges in combating new types of transnational crimes. This treatise demonstrates that this challenge might bring the necessary momentum to formally introduce police and judicial co-operation in criminal matters, usually a high policy area, on the agenda of the AU. In conclusion, this treatise shows that co-operation in such a sensitive area as security policy first and foremost needs a sufficient amount of trust between the decision makers of the involved states. To develop this necessary trust and the processes building upon this, this treatise argues that a regular meeting between the Interior and Justice Ministers, either inside or outside the framework of the AU, should be launched. Through these meetings the AU could gradually develop a platform for discussion in the area of criminal law and thereby slowly intensify its information exchange and operational co-operation. The history of the EU has shown that the development of a supranational legal system first and foremost requires mutual trust in each other's respective legal systems. Trust is generated by communication in an informal atmosphere. Therefore, this treatise argues that a colloquial intergovernmental co-operation within the field of criminal law is the correct approach for the AU to develop a police and judicial co-operation in criminal matters.
- Full Text:
- Date Issued: 2015
The criterion of justifiability as a ground for review following Sidumo v Rustenburg Platinum Mines (2007) 12 BLLR 1097 (CC)
- Fischat, Herbert Robert James Falconer
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
- Authors: Fischat, Herbert Robert James Falconer
- Date: 2013
- Subjects: Arbitration, Industrial -- South Africa , udicial review -- South Africa , Dispute resolution (Law) -- South Africa , Mineral industries -- South Africa -- Employees , Conflict of laws -- Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10246 , http://hdl.handle.net/10948/d1019792
- Description: This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
- Full Text:
- Date Issued: 2013
An evaluation of the constitutionality of the common law crime of criminal defamation
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
The role of the education labour relations council in collective bargaining
- Authors: Foca, Nolusindiso Octavia
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10298 , http://hdl.handle.net/10948/d1021054
- Description: The 1996 Constitution provides workers with the right to form and join trade unions and to participate in the activities and programmes of those trade unions. The organizational and associated rights contained in sections 23(2)-(4) of the Constitution of Republic of South Africa, form the bedrock of a labour-relations system characterized by voluntarist collective bargaining. The constitutional protection that the above section gives to these organisational rights shields the trade unions and employer organisations from legislative and executive interference in their affairs and in turn, inhibits victimisation of and interference in trade unions by employers. One of the expressly stated purposes of the Labour Relations Act of 1995 (hereinafter referred to as the “LRA”) is to promote collective bargaining and to provide a framework within which employers, employers’ organisations, trade unions and employees can bargain collectively to determine wages, terms and conditions of employment, other matters of mutual interest and to formulate industrial policy. Notwithstanding the above purpose, the Act does not compel collective bargaining, with the result that the courts have no role in determining, for example, whether an employer should bargain collectively with a trade, what they should bargain about, at what level they should bargain or how parties to a negotiation should conduct themselves. Despite this, by extending and bolstering the right to strike, the LRA has effectively empowered trade unions to have recourse to the strike as an integral aspect of the collective bargaining process. The LRA provides a framework that is conducive to collective bargaining and thus providing for the establishment of bargaining councils. The purpose of this treatise is to examine the role played by the Education Labour Relations Council (hereinafter referred to as the “ELRC”) as one of the sectoral bargaining councils in the Public Service, in collective bargaining. In order to place this discussion in context, it is valuable to know the history of industrial relations and collective bargaining in South Africa.
- Full Text:
- Date Issued: 2014
- Authors: Foca, Nolusindiso Octavia
- Date: 2014
- Subjects: Collective bargaining -- South Africa , Labor laws and legislation -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10298 , http://hdl.handle.net/10948/d1021054
- Description: The 1996 Constitution provides workers with the right to form and join trade unions and to participate in the activities and programmes of those trade unions. The organizational and associated rights contained in sections 23(2)-(4) of the Constitution of Republic of South Africa, form the bedrock of a labour-relations system characterized by voluntarist collective bargaining. The constitutional protection that the above section gives to these organisational rights shields the trade unions and employer organisations from legislative and executive interference in their affairs and in turn, inhibits victimisation of and interference in trade unions by employers. One of the expressly stated purposes of the Labour Relations Act of 1995 (hereinafter referred to as the “LRA”) is to promote collective bargaining and to provide a framework within which employers, employers’ organisations, trade unions and employees can bargain collectively to determine wages, terms and conditions of employment, other matters of mutual interest and to formulate industrial policy. Notwithstanding the above purpose, the Act does not compel collective bargaining, with the result that the courts have no role in determining, for example, whether an employer should bargain collectively with a trade, what they should bargain about, at what level they should bargain or how parties to a negotiation should conduct themselves. Despite this, by extending and bolstering the right to strike, the LRA has effectively empowered trade unions to have recourse to the strike as an integral aspect of the collective bargaining process. The LRA provides a framework that is conducive to collective bargaining and thus providing for the establishment of bargaining councils. The purpose of this treatise is to examine the role played by the Education Labour Relations Council (hereinafter referred to as the “ELRC”) as one of the sectoral bargaining councils in the Public Service, in collective bargaining. In order to place this discussion in context, it is valuable to know the history of industrial relations and collective bargaining in South Africa.
- Full Text:
- Date Issued: 2014
Accountability of child soldiers in conflict situations in Sub Saharan Africa
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010
The effect of the amendments to the labour relations act on collective labour law and proliferation of the unions
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
- Authors: Galorale, Mompati Jonas
- Date: 2018
- Subjects: Collective labor agreements -- South Africa , Labor unions -- Law and legislation -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30216 , vital:30901
- Description: The Constitution guarantees freedom of association, the right of employees to form and join trade unions and to strike, and the rights of trade unions, employers and employers’ associations to bargaining collectively. Section 23 of the Constitution is even-handed: it confers on “everyone” (including employers) a right to fair labour practices and leaving aside the right to strike, confers identical rights on trade unions and employers’ organisations. It is also important to note that the Constitution seeks to advance principles of equality and human dignity before the law. Section 1 of the Labour Relations Act 65 of 1995 (the LRA) provides that the purpose of the LRA is to advance economic development, social justice, labour peace and democratization of the workplace. When interpreting and applying the LRA and the amendments one must give effect to the primary objects of the LRA in compliance with the Constitution of the Republic of South Africa, 1996 (the Constitution) and in compliance with ratified Conventions of the International Labour Organisation (the ILO). In terms of section 45 of the Labour Relations Amendment Act 6 of 2014 (the LRAA), the President of the Republic of South Africa declared 1 January 2015 as the effective date for the amendments. Employers had from the 1 January 2015 to comply with the LRAA. The amendments impact on all employees, employers and registered trade unions. The amendments responded to, amongst other things, the increased formalisation of labour and also seeks to ensure that vulnerable groups of employees receive adequate protection. The main purpose for the amendments to section 21 of the LRA is to provide for the organisation of employees engaged by a temporary employment service (TES), to broaden the discretion of commissioners under which organisational rights may be granted, to grant majority rights to most representative unions and to allow a commissioner to grant organisational rights despite a threshold agreement. Collective labour law is also materially effected by these amendments, which are aimed at promoting the inclusion of non-standard employees in the collective bargaining framework and expanding the application of organisational rights. The collective-labour law amendments are the focus of this treatise. This will expand the employee pool in a workplace for purposes of securing organisational rights. The amendments have the effect of creating a more inclusive collective bargaining environment in the workplace. It is hoped that this will lessen the need felt by smaller unions to use industrial action as the only route to secure organisational rights previously intended for more representative unions only. The LRAA made it much easier for unions to obtain organisational rights to sufficiently represented unions who do not have majority representation. A commisioner may in terms section 22 of the amendments extend a collective agreement between a TES and its employees and this agreement may be enforced on the client and vice versa. Trade unions representing the employees of a TES will be in a position to exercise their organisational rights not only at the workplace of the TES, but also at the client’s workplace, despite the employees not being employees of the client. In furtherance of these objectives the LRA1 provides a regulatory framework for collective bargaining and organisational rights – in keeping with international and constitutional obligations. Trade unions are the vehicles for effective collective bargaining, while the LRA unequivocally promotes the policy choice of majoritarianism. The LRA was formulated around the furthering of section 23(5) of the Constitution. What is of significance therefore, is to regulate the framework for collective bargaining, of which the amendments prioritized the provision of legislated organisational rights. In keeping with the constitutional objectives mentioned above, section 21(8)(a)(i) of the LRA directs commissioners, in resolving recognition disputes, to: “seek to minimise the proliferation of trade union representation in a single workplace, and where possible, to encourage a system of a representative trade union in a workplace.”
- Full Text:
- Date Issued: 2018
The substantive and procedural limitations on the constitutional right to strike
- Authors: Gathongo, Johana Kambo
- Date: 2015
- Subjects: Strikes and lockouts -- South Africa , Civil rights -- South Africa , Employee rules -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9254 , http://hdl.handle.net/10948/d1021205
- Description: This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.
- Full Text:
- Date Issued: 2015
- Authors: Gathongo, Johana Kambo
- Date: 2015
- Subjects: Strikes and lockouts -- South Africa , Civil rights -- South Africa , Employee rules -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:9254 , http://hdl.handle.net/10948/d1021205
- Description: This treatise discusses the increasing of the procedural and substantive limitations on the employees’ right to strike. The Constitution permits the right to strike to be limited in terms of the laws of general application. The Labour Relations Act (LRA) is a good example. Such limitation must be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom. The study sought to investigate whether further increasing the existing limitations on the right to strike unduly breaches employees’ Constitutional right to strike and the purpose of the LRA. Further, the study sought to find out whether the additional content requirements in the strike notice amount to importing into the LRA additional limitations on the fundamental right to strike that enjoys no textual support. Through an extensive literature review, the findings arguably show that indeed further increasing the limitations on the employees’ right to strike may unduly infringe their right to strike. Moreover, the increase of the content requirements in a strike notice creates an unnecessary hurdle to employees wishing to strike. One of the most important finding made is that instead further increasing the limitations on the right to strike, going back to the basics of negotiation to alleviate strikes, particularly wage-related strikes is vital. To achieve this, it is important for employers to re-establish social and individual relationships with their employees, whereby they become aware of the issues that employees face on a daily basis. Also, establishing proper workplace dialogue and forums would assist employers in becoming aware of employees concerns. This would thereby prevent strikes, as problems can be dealt with beforehand. The findings above informed in the recommendations at the end of the study.
- Full Text:
- Date Issued: 2015
The extension of employment rights to employees who work unlawfully
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
Substantive fairness in the context of dismissal for team misconduct
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
- Authors: Gcayi, Siziwe
- Date: 2018
- Subjects: South Africa -- Labour Relations Act, 1995 , Employees -- Dismissal of -- Law and legislation -- South Africa Labor laws and legislation -- South Africa Unfair labor practices -- South Africa Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22134 , vital:29852
- Description: Employees have inherent common law duties towards their employers. These duties include: obedience, care, competency and good faith.1 An employee has a duty to act in good faith towards the employer. For purposes of this treatise, focus will be on competency and good faith. Section 188(1) of the Labour Relations Act,2 provides three grounds on which dismissal can be considered to be fair. These grounds are: misconduct, capacity and an employer’s operational requirements. For purposes of this research paper, focus will be on misconduct. Capacity and employer’s operational requirements will not be discussed. For purposes of the present discussion misconduct can be divided into two broad categories namely, individual misconduct and group misconduct. Individual misconduct refers to transgression by a single employee who by his or her conduct violates the company policy or valid rule in the workplace. When the employer contemplates dismissing the employee for misconduct, it has to prove on the balance of probabilities that the employee concerned is guilty of misconduct and that the misconduct concerned justified a dismissal in the sense that it had irretrievably destroyed the requisite trust element in the employment relationship. Group misconduct refers to transgression that has been committed by group of employees. The following forms part of what can be categorised as falling within group misconduct: collective guilt, derivative misconduct, common purpose and team misconduct. Ideally the manner in which group misconduct is dealt with should be different from the way individual misconduct is handled. Individual misconduct refers to a single employee or misconduct of more than one employee who can be isolated and charged/handled as individuals, whereas group misconduct refers to a number of employees, whose conduct has offended the rules of the employer. In respect of group misconduct, the employer does not have to prove individual liability for each of the 1 Module 8 CCMA candidate commissioner notes. 2 66 of 1995. affected employees. An employer may after fulfilling certain requirements penalize them as a group.
- Full Text:
- Date Issued: 2018
The possibility of psychotherapeutic privilege in South Africa
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Date Issued: 2009
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Date Issued: 2009
Education is an essential service
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
- Authors: Geyer, Simone
- Date: 2014
- Subjects: Collective bargaining -- Education -- South Africa , Right to education -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10254 , http://hdl.handle.net/10948/d1020875
- Description: This treatise investigates the extent to which education could be declared an essential service. This is informed by an ongoing public perception that education is in a crisis as a result of the ease within which teachers embark on wildcat strikes, the level of absenteeism in schools, the manner in which communities prevent learners from attending school to place pressure on the state to meet service delivery demands, the lack of professionalism among teachers and the performance of our learners in achieving international benchmarks of results. The treatise critically explores the debate, in the South African context, on the need to declare education as an essential service in South Africa. This is done by examining the international benchmarks set by the International Labour Organization (ILO) in relation to essential services and what motivating reasons exist, if any, to proceed with declaring education as an essential service. There is a dire need to find a balance between the teachers’ right to strike and the learners’ right to basic education. At the moment there is a threat to this balance with the rights of teachers appearing to override those of learners and this has a negative impact on the learning outcomes and stability in education. The question that arises is what measures must the South African government put in place to ensure that the fundamental rights to education are not compromised. If the current situation continues to prevail it has the danger of retarding the development of a society in transition. There is a need for urgent intervention that takes on a consensus-based approach of identifying education as an essential priority in the interests of all. Can this be achieved by developing a minimum service level agreement for education that outlines which levels of teachers may go on strike? Can policy be regulated that outlines the duties of principals and deputy principals as those who are in the authority of the state and as such may not go on a strike? Can this be achieved without compromising the rights of any citizen as guaranteed in the Constitution of South Africa? The solution that this treatise provides to these vexing questions attempts to balance the rights of teachers with those of learners with a view to normalizing and stabilizing education in South Africa. It recommends that policy be set in place for principals and deputy principal that identifies them as part of those public servants who are in the authority of the state and therefore may not embark on a strike. This will enable the state to gain control of striking situations in education to ensure that there is still authority at the schools to maintain some level of minimum service, especially where there are very young learners. At the same time this will not be so severe as to render a strike in education ineffective for the teachers’ not to be able to exert force on the state to achieve improved conditions of service for themselves.
- Full Text:
- Date Issued: 2014
The legal protection of temporary employees
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
- Authors: Gillespie, Neil
- Date: 2013
- Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
- Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
- Full Text:
- Date Issued: 2013
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
Rethinking minimum sentence Legislation
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020