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The effective use of legal protection to combat stigma and discrimination related to HIV and AIDS in a workplace: a case study in kwa Zulu Natal

  • Authors: Ndobeni, Zoliswa Nomawesile
  • Date: 2018
  • Subjects: AIDS (Disease) -- Law and legislation , Medical policy -- legislation & jurisprudence Public health -- legislation & jurisprudence HIV-positive persons -- Employment -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/32804 , vital:32365
  • Description: Stigma and discrimination continue to be the leading cause of everyday cases of new HIV/AIDS infections in spite of the current legal and medical interventions available. The purpose of the study is to explore the effective use of legal protection in combating stigma and discrimination related to HIV/AIDS in the workplace. When it comes to fighting discrimination and stigma against people living with HIV/AIDS, it is still a challenge as these aspects prevent people from coming forward for testing and for prevention as well as treatment service. The rationale for conducting the study is to examine the relationship of the human rights as per the Constitution of South Africa and the spread and impact of HIV/AIDS on individuals in the workplace. The study is of significance to conduct as the research will further provide knowledge and awareness to both the employer and employee regarding the legal framework pertaining to HIV/AIDS and perhaps unintentional consequences of the legal framework to both the employer and employee concerning productivity and growth. Various legal frameworks were determined to address HIV pandemic in South Africa which constitutes one of the utmost challenges facing the nation as well as benchmarking international law. The structure and functioning of the workplace is a key possibility to address developmental inequities in South Africa. This includes the development of healthcare centres in the workplace. HIV testing involves a great deal of risks and consequences that may not be apparent to the patient. Hence, informed consent is required. Policies and guidelines have been put in place to protect employees. HIV clinicians now argue that HIV testing should be presented as a routine procedure, to remove social barriers and stigma. The present study recommends various programmes that may assist in minimizing stigma and discrimination of people living with HIV. This stigma prevent persons from testing for HIV status. The study also seeks to evaluate and review current policies concerning HIV/AIDS.
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  • Date Issued: 2018

The legal remedies to protect minors against cyberbullying in South Africa

  • Authors: Hlazo, Nonhlanhla Irene
  • Date: 2018
  • Subjects: Cyberbullying -- South Africa , Child pornography -- Law and legislation -- South Africa , Child sexual abuse -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30271 , vital:30914
  • Description: The aim of this research is to investigate the constitutional, common law and legislative remedies available to protect the rights of minors against cyberbullying in South Africa and whether these laws are in line with the relevant international instruments. The study focuses on the protection of the rights of minors online as the most vulnerable group in society. The internet was not originally created to be used by minors, therefore, children are subject to more risks on the internet like cyberbullying. Cyberbullying results in the infringement of the rights to privacy, dignity and reputation among others. There are several remedies available in South African private law to protect the rights of minors. However, the rights of the victim must be balanced against the perpetrator’s right to freedom of expression, taking into consideration the best interests of both children. The remedies available are in line with some international instruments safeguarding human rights but there are a number of weaknesses in relation to the application of these remedies to instances of cyberbullying. For example, an interdict cannot be issued in instances where the cyberbully is anonymous. The current legislative framework, although also in line with relevant international instruments, is not going far enough to protect children against cyberbullying. In addition, the term “cyberbullying” is not specifically defined in any of the Acts, which may create challenges in the prosecution of the crime. Fortunately, there are a number of Bills in the pipeline that aim to address the gaps in the current law. Several provisions of the Bills also correlate with relevant international instruments. However, there is a need to revise the proposed Bills in order to sufficiently protect minors against cyberbulling. This study also proposes recommendations relating to some of the inadequacies of the law in this regard.
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  • Date Issued: 2018

The non-restoration of land: scope and ambit of section 34 of the restitution of land rights act

  • Authors: Christoffels, Eugene Miles
  • Date: 2018
  • Subjects: Restitution -- South Africa , Land reform -- South Africa Land reform -- Government policy -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/23869 , vital:30636
  • Description: The land question is an emotionally-laden issue for all people across the racial divide in South Africa, albeit for different reasons land serves a variety of human needs: it creates a sense of identity, it creates wealth, imbues the owner with human dignity; it is also an axis for social cohesion and it is key to the exercise of economic and political power. South Africa is still in the throes of withdrawal symptoms as a result of a checkered colonial past, when it comes to the issue of the land. Having been dispossessed of their ancestral land by the country’s former colonial rulers, the majority of South Africans now have the yearning that the wrongs of the past be addressed, and that justice be done. Having repealed the Apartheid laws which had provided for the calculated systematic dispossession of the land and rights in land of the majority of citizens of South Africa, was and is not sufficient. The Constitution of the Republic of South Africa, being negotiated Constitution, which is internationally lauded, provides for a three-pronged land reform programme, namely restitution, redistribution and tenure reform. The focus of this dissertation is on the restitution leg and more specifically the issue of non-restoration which is provided for in section 34 of the RLRA 22 of 1994, as amended (the RLRA). Section 34 specifically provides that in some instances, land will not be restored to claimants even though they may satisfy the requirements for a valid claim provided for in section 25(7) of the Constitution and section 2 of the RLRA. It is submitted that it is necessary to acquire an understanding of the requirements for a restitution claim even though the land claimed may be removed from the process before a claim has been finalised, since the claimants will still have to satisfy the abovementioned requirements after a particular parcel of land or right in land has been removed from the process by a court of law. In other words, the court has made an order of non-restoration even before the claim has been finalised. Such an application for non-restoration of the land in question or rights in relation to land, may be brought by any national, provincial or local government body, in terms of section 34(1) of the RLRA, and the court will then grant such application provided the applicant has convinced the court that the two threshold requirements listed in section 34(6) have been satisfied. This dissertation outlines a number of cases which serve as practical examples of how the courts dealt with the threshold requirements contained in section 34(6). Included in this examination is the courts’ interpretation of the concepts “public interest” and “substantial prejudice”, which are contained in the requirements listed in section 34(6). This dissertation furthermore sought to determine whether the courts have adopted a broad or narrow approach to these concepts and whether the approach that the courts have adopted strikes an appropriate balance between the constitutional right to restitution and the goals underlying section 34. What is evident from the research is that, apart from the Constitutional Court in the KwaLindile case, none of the other courts provided a substantive definition of the concept “public interest”, but rather chose to refer to academic writings. It is submitted that the courts by and large appear to overlook the fact that the restitution of land and rights in land and arguably, the restoration of land, are in the public interest. While the courts do acknowledge the claimants’ rights to restitution, they downplay the importance of restoration since they argue that there is only a right to restitution and not a right to restoration, and that claimants can still be offered an alternative remedy in lieu of restoration, and in the process courts are ignorant of the fact that these other remedies do not help to change the skewed racial distribution of land in South Africa. Two factors seem to weigh heavily with the courts in favouring the granting of a section 34 order, it being the development of the land or development potential and the avoidance of the cost of a lengthy trial focusing on the restoration when there is no chance of success. It is submitted that there seems to be an over-emphasis on these factors while ignoring the fact that a person’s house is part of his identity, deserving more protection than other property, such as a shopping centre, which is not constitutive of a person’s identity. This view is espoused by Radin. Dyal-Chand postulates the idea that property is not always exclusive but can be shared. This would mean that when it comes to property like shopping centres, which she regards as quasi-public property, the courts should be more willing to grant restoration orders and thus not be so willing to grant section 34 non-restoration orders. Even though the RLRA, through section 34(5)(c) gives the courts the power to transform our colonial system of property law, it is submitted that they have largely failed to rise to this challenge. There appears to be an unwillingness to make a shift from our Roman-Dutch law past and break with our Eurocentric view of property law.
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  • Date Issued: 2018

The praxis of reasonability and onus of proof in tax administration in South Africa

  • Authors: Mostert, Tarita
  • Date: 2018
  • Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/22802 , vital:30091
  • Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
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  • Date Issued: 2018

The protection offered in terms of the 2014 labour law amendments to fixed-term Contract and part-time employees

  • Authors: Ntsebeza, Uonella
  • Date: 2018
  • Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa Employee rights -- South Africa Labor market -- laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/33567 , vital:32888
  • Description: Labour law knows that employers are generally in a stronger bargaining position than employees.1Therefore, labour law is largely premised on the idea of protection of the interest of employees. Fixed term employees2 as ‘atypical’3 or ‘conditional’ employees are particularly weak bargaining parties in the employment relationship. It is common practice for employers to treat fixed term and part-time employees differently to their permanent colleagues. Temporary employment relationships are often associated with the withholding of rights and benefits, lack of job security, deprivation of status and poor remuneration. Fixed term employees are also likely to be more exposed to exploitation, particularly those who are not highly skilled. 4In addition, they often do not enjoy trade union protection and are not covered by collective agreements. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. Therefore, fixed term employees are more inclined to depend on the statutory protection enacted to ensure basic working conditions. These employees are often not recruited into trade unions due to the precarious or temporary nature of their work fixed term employees are more inclined to depend on statutory protection enacted to ensure basic working conditions.
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  • Date Issued: 2018

The regulation of subsidies and regional trade among developing countries in the multilateral trading system: the case of export processing zones in Malawi

  • Authors: Chirwa, Watson Pajanji
  • Date: 2018
  • Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
  • Language: English
  • Type: text , Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10962/62428 , vital:28175
  • Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
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  • Date Issued: 2018

The return-to-work policy for injured and diseased workers

  • Authors: Keti, Nosicelo
  • Date: 2018
  • Subjects: Employees -- Rehabilitation -- South Africa , Labor laws and legislation -- South Africa Workers' compensation Industrial accidents
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/31064 , vital:31307
  • Description: Despite measures undertaken by employers in promoting safety in the workplace, employees become injured or diseased due to work related accidents. When an employee sustains a work related injury or disease that results in their short term or prolonged absence from work, it becomes crucial for the employer to return the injured or diseased employee back to work as quickly as possible. Returning employees back to work as early as possible becomes an important factor in reducing worker’s compensation costs. In South Africa, unlike developed countries like the United Kingdom, there is still a lack or absence of rehabilitation, reintegration and RTW programmes. The lack or absence of suitable rehabilitation, reintegration and RTW programmes that not only ensure that an injured or diseased employee is returned to work, but further enable such injured or diseased employee to attain, keep and progress in employment often results in employees becoming dependent on disability grants or social welfare payments. There is recognition that some effort is required to ensure that employees who have been affected by work related injuries or diseases are returned to gainful employment. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa, in 2002, highlighted that “modern social protection policy making is no longer therapeutic but also pre-emptive and restorative or rehabilitative in nature”. The study investigated the need for the South African government and business to adopt and implement programmes or systems that are targeted at correcting or restoring the damage. This can be achieved through retraining, re-skilling and social integration of the injured or diseased employees. The findings indicate that despite recognition by the Compensation of Occupational Injuries and Disease Act (COIDA) of the need to establish and implement appropriate rehabilitation, reintegration and RTW programmes, such programmes have still not been established in South Africa. There are, however, initiatives directed towards the establishment and implementation of these programmes and these are found in the proposed COIDA amendment Bill which prioritises rehabilitation, reintegration and RTW. Proposed in the Bill, is the imposition of incentives for those employers who successfully implement rehabilitation, reintegration and RTW programmes within their workplaces and penalties against those who fail to comply with the provisions of the proposed Bill. Another relief can be seen in the form of the Road Accident Benefit Scheme (RABS) Bill, which will soon replace the Road Accident Fund (RAF). Unlike the RAF, which is primarily concerned about the compensation of road accident victims through lump sum payments, RABS will particularly focus on rehabilitation and vocational training and will offer payments in a structured manner to not only ensure the continual financial support of the accident victims, but further that the proposed scheme remains sustainable in the long term. Further findings are that although the Constitution of the v Republic of South Africa has adopted an international law friendly approach and the Bill of Rights is in support of the implementation of RTW measures, South African law is not aligned to international and regional standards. South Africa has still not ratified international instruments that promote the early return of injured or diseased employees back to work. In conclusion, South Africa needs to adopt and implement rehabilitation, reintegration and RTW measures or programmes for injured or diseased workers in order to address the high unemployment rate, poverty and dependence on State funded social assistance services.
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  • Date Issued: 2018

The role of the CCMA and bargaining councils in labour dispute resolution

  • Authors: Mkalipi, Thembinkosi
  • Date: 2018
  • Subjects: South Africa -- Commission for Conciliation, Mediation, and Arbitration , Dispute resolution (Law) -- South Africa Arbitration, Industrial -- South Africa Collective bargaining -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/32182 , vital:31977
  • Description: A feature of collective bargaining is that it has a habit of ending in deadlock. However, in the event of a dispute, an aggrieved party is not free to call an immediate strike or lockout. The Labour Relations Act of 1956 and the Labour Relations Act of 1995 (“the LRA”) provided for a strict procedure to be followed in an event of a dispute. The law before 1995 regarded industrial action in the case of a dispute that did not follow the procedure as an illegal act attracting criminal sanction. The law then distinguished between a dispute of right and a dispute of interest. Like many countries, South Africa, has a very violent history regarding the resolution of labour disputes. This is illustrated by the force and brutality that was used to solve the 1913 white miners’ strike after martial law was declared. The reaction of the employers and the state was more brutal. The same violence and brutality were applied in the 1914 railway-workers strike and the 1946 African workers strike. The most important purpose of labour law is to ensure labour peace will prevail in the labour market and to regulate relations between employer and employee. Labour peace ensures that the economy functions effectively and if this happens, society at large benefits greatly. In Chapter 1 of the LRA one of the purposes of the LRA is stated as: “the effective resolution of labour disputes.” This section is intended to give effect section 23(1) of the Constitution, which provide that, ‘‘everyone has the right to fair labour practices’’1. This treatise will analyse the role of the Commission for Conciliation, Mediation and Arbitration (the CCMA) in dispute resolution; its functions and jurisdiction, ensure labour peace and whether the dispute resolution system provided in the law and implemented by the different dispute resolution institutions have succeeded to advance Constitution of the Republic of South Africa Act 108 [1996]. Economic development, social justice, labour peace and the democratisation of the workplace to fulfil the purpose of the LRA. Under the previous Labour Relations Act2 (the “1956 LRA”) disputes were resolved through three main institutions namely, Conciliation Boards, Industrial Councils and the Industrial Court3. A Conciliation Board was on ad hoc - body established by the Minister of Manpower on application by any one of the parties in dispute. There was no requirement for an agreement between the disputing parties to apply for the establishment of a Conciliation Board. Either party could approach the Minister for its establishment. This application could be made on the workers side by one or more registered trade unions, one or more employees, or one or more registered trade unions. On the employer’s side, the application can be made by one or more registered employers’ organisations or, one or more employers.
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  • Date Issued: 2018

The scope of environmental protection under the legal framework of the World Trade Organisation : an evaluation of the issues and implications for developing countries

  • Authors: Umenze, Nnamdi Stanislaus
  • Date: 2018
  • Subjects: Environmental protection -- Developing countries Environmental law -- Developing countries
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/10802 , vital:35762
  • Description: Over the years, the extent to which the legal framework of the World Trade Organisation (WTO) makes provision for environmental protection has been a major issue within the organisation. While trade liberalisation and environmental protection are fundamental objectives of the WTO to be pursued in line with the sustainable development goals as enshrined in the Preamble of the Marrakesh Agreement, the organisation does not have a specific agreement on the environment. Moreover, efforts by the member states of the WTO to reform the environmental protection regime of the global trading system have achieved little. Nevertheless, under the current legal framework of the WTO, members are allowed, subject to a number of conditions, to adopt trade-related measures aimed at protecting the environment. Employing documentary research methodology, this study critically evaluates the relationship between trade and the environment, the provisions made for environmental protection in selected WTO agreements and the extent to which trade-related environmental protection measures are permissible under the legal framework of the WTO. It also evaluates the implications of unilateral and the Multilateral Environmental Agreements (MEA)-based environmental trade measures as well as the possibility of a clash of policy objectives between the WTO Agreements and the MEAs, given that some of the MEAs contain environmental trade measures prohibited by the WTO free trade rules. The findings made in this study suggest that states generally prefer to enforce unilateral environmental trade measures against foreign goods. This has allowed states, in some instances, to hide under the guise of environmental protection to pursue protectionist’s interests, eco-imperialism, etc., leading to the trade and environment-related disputes at the WTO. Moreover, the WTO is made up of member states that are at different levels of development and possess different environmental protection standards. Hence, there is concern from developing countries, on the one hand, that their economic interests are being frustrated by the stringent application of unilateral environmental trade measures in the developed countries, and, on the other hand, that the environmental burden of international trade is being shifted to the developing countries as the developed countries tighten their environmental standards. The study concludes that the environmental protection regime of the WTO as it stands is not adequate to guarantee the balance of trade and environmental protection objectives as well as the balance of interests between the developed and developing countries. The study, therefore, recommends reform in the environmental protection regime of the WTO to ensure that the environmental protection measures are adequately provided for and that balance of interests between the developed and developing countries is maintained in order to ensure sustainable global trade. It further recommends that a mutually reinforcing relationship should be established between the WTO and the MEAs to avoid a possible clash of policy objectives.
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  • Date Issued: 2018

The unfair labour practice relating to suspension

  • Authors: Moela, Matlose Phineas
  • Date: 2018
  • Subjects: Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa Labor policy -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/23038 , vital:30398
  • Description: This treatise considers unfair-labour- practice relating to suspensions in the workplace. Furthermore the treatise outlines the legal framework relating to suspensions in the workplace. As I explore this fundamental issues of the law, the fairness relating to suspension will be examined. Some recommendations are also made as to how departments and organisations must develop guidelines and policies which are legally sound to deal with suspension in the workplace. Employees often challenge the fairness of their suspension in the workplace. These challenges are based on a number of things, including failure to provide an employee to make representations, failure to comply with policies regulating suspensions in the workplace, suspension without pay, prolonged suspensions, etc. The treatise therefore also consider these challenges as well as the recourse available to employees. The treatise commences with the legal framework and principles contained in the Labour Relations Act, 66 of 1995 (hereinafter referred to as the LRA) applicable to suspensions. The treatise then considers other legislation and recent developments in both the public and private sector. The study concludes with remedies available to employees in instances where an unfair-labour-practice relating to suspension has been found to be committed by an employer during the suspension process.
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  • Date Issued: 2018

Unfair discrimination and affirmative action in the workplace

  • Authors: Motona, Johannes
  • Date: 2018
  • Subjects: Discrimination in employment -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Affirmative action programs -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/32300 , vital:32007
  • Description: South Africa enacted the following legislation, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998 and the Labour Relations Act 66 of 1995. In terms of the Constitution a notion of substantive equality was incorporated in the Bill of Rights. Section 9 of the Constitution specifically provides that no person may be discriminated against and provides a list of grounds which are specifically prohibited. Furthermore, the Constitution affirms the values of equality, dignity and freedom. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 aims at eliminating social and economic inequalities which were created by apartheid. The Employment Equity Act 55 of 1998 is similar to the Promotion of Equality and Prevention of Unfair Discrimination Act and takes into consideration the inequalities in employment, occupation and income which exist as a result of apartheid. In maintaining the objective of this treatise, section 6(2) of the EEA must be seen as an extension of and read in light of section 9(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and freedoms and permits the use of legislative and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination in the past for the purpose of achieving substantive equality. Therefore, section 6(2)(a) of the EEA may be considered the statutory equivalent of section 9(2) of the Constitution. The Constitution of the Republic of South Africa, 1996 has a key and crucial commitment to substantive equality and to correct the imbalances of the past and to create a less divided society in which the constitutional democracy can be advanced. The Constitution identifies human dignity, the achievement of equality and the advancement of human rights and freedoms as some of the basic values upon which South Africa is founded. The Constitution restraints the state and any person from unfairly discriminating on grounds that adversely impacts upon dignity. It further empowers the state to take legislative and other measures to advance persons previously disadvantaged by unfair discrimination. This treatise covers the test for affirmative action as in the Harksen Test, Minister of Finance v Van Heerden and recently strengthened in Solidarity obo Barnard v SA Police Services. It also deals with the Barnard trilogy. Of significance is that the Constitutional Court judgment in Barnard is the first Constitutional Court judgment dealing with affirmative action and its application in terms of the EEA. The judgment strengthens the Constitutional Court finding in Van Heerden in that a restitutionary measure such as affirmative action is not presumed unfair unless it complies with the section 9(2) “internal test”. The Post Barnard Judgment is also discussed in this treatise with reference to the following cases: Mgolozeli v Gauteng Department of Finance and Another, Solidarity and the Department of Correctional Services, South Africa Police Service v the Public Service Association of South Africa: Captain Munsamy and another and Solidarity v the Minister of Safety and Security and others.
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  • Date Issued: 2018

A comparison of the implementation of equal pay for work of equal value with Canadian law

  • Authors: Mamashela, Ntsoaki Lydia
  • Date: 2017
  • Subjects: Equal pay for equal work -- Law and legislation -- Canada Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- Canada Pay equity -- South Africa Labor laws and legislation -- Canada Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/18332 , vital:28622
  • Description: The consolidation of 22 years of democracy and 20 years of the Constitution of the Republic of South Africa entrenched the need to eradicate social and economic inequalities, particularly those that stem from our history of colonialism, apartheid and patriarchy, which brought pain and suffering to the great majority of our people, in particular Black people. Therefore, the passing of the Constitution of the Republic of South Africa (Constitution)1 20 years ago, marked a turning point in our history by giving expression firstly, to the Freedom Charter and secondly, by upholding the values of human dignity, equality, freedom and social justice in a united, non-racial and nonsexist society where every South African may flourish. However, despite the fact that the Bill of Rights in the Constitution provides that everyone is equal before the law and that equality includes the full and equal enjoyment of all rights and freedom, discriminatory practices, in particular, pay inequalities, are still rife in our country. It is against this backdrop that the historical background of the employment discrimination law in South Africa, which over a period of time, contributed significantly to the high levels of inequalities in pay experienced by the previously disadvantaged groups, such as Black people, women and people with disabilities becomes critical. This aspect points to the importance of understanding the context within which the principle of “Equal Pay for Work of Equal Value” has been and should be implemented in South Africa compared to Canada. Therefore, drawing from the review of the legislation and the implementation processes of the principle of equal pay for work of equal value, the following best practices/ lessons learned were identified: 108 of 1996. The Canadian Ontario Pay Equity Act states that the value of job classes be based on factors such as skill, effort, responsibility and working conditions. This Act also requires the employer to take proactive steps to institute a jobevaluation scheme, and the participation of the social partners and the affected workers is crucial. It is submitted that there are similarities in these requirements with those contained in the Employment Equity Regulations, 2014, which implies that the South African legislative framework draws on this best practice. The Ontario Employment Standards Act allows the comparison to be drawn with the establishment of the same employer in the same municipality, as well as with establishments to which a worker can be transferred. In this regard, it is observed that the new provisions on equal pay in section 6(4) of the Employment Equity Amendment Act, 2013, limits only the comparison with the employees of the “same employer” without elaborating further into the same municipality or with establishments to which a worker can be transferred. Under Ontario Pay Equity Act, even if there is no precise comparator in the establishment doing work of equal value, the employer must ensure that the worker’s pay is proportionate to others doing work of proportionate value. In the context of South African legislation, a comparison on the basis of proportionate value is not catered for. The meaning of “work of equal value” refers to the work that is the same (identical or interchangeable), substantially the same (sufficiently similar), or of equal value (accorded the same value) when compared to an appropriate comparator. In justifying equal pay, the Ontario statute provides that formal seniority systems and performance-related pay can justify unequal pay only if they do not discriminate on the grounds of gender. This is similar to the South African statute, in particular, regulation 7 of the Employment Equity Regulations, 2014, which include seniority and performance as some of the factors that may justify unequal pay only if they do not unfairly discriminate on one or combination of the listed grounds, and on any other arbitrary ground as prescribed by section 6(1) of the EEA as amended. As per the Ontario legislation, the employer cannot reduce the rate of remuneration in order to comply with the principle of equal pay for work of equal value. Similarly, in the South African legislation, in particular, regulation 7 of the Employment Equity Regulations, 2014, it prevents levelling down of pay in instances of demotions and in transfer of contracts (section 197 of the LRA). There is a requirement in terms of the Ontario Pay Equity Act, that employers must establish and maintain pay equity in their establishment in consultation with the bargaining agent (trade unions); and after the agreement, post a Pay Equity Plan in its workplace. In terms of South African legislation, the EEA does not have a requirement for a Pay Equity Plan, however, designated employers (those required to comply with Chapter III of the EEA) are required in terms of sections 19(1) and 20 of the EEA to conduct a review of their workplace policies, practices and procedures, inclusive of remuneration and benefits; and develop and implement affirmative-action measures to address any unfair discrimination practices by including these measures in their Employment Equity Plans. Furthermore, in terms of section 27 of the EEA, designated employers are then required to submit their annual Income Differential Statements to the Employment Conditions Commission (ECC) on the remuneration and benefits received in each occupational level of that employer’s workforce. In relation to dealing with pay-equity disputes, the Ontario Pay Equity Act, establishes a Pay Equity Commission, which consists of a Pay Equity Office, inclusive of Review Officers and the Hearings Tribunal that are mandated to specifically enforce the equal-pay-for-work-of-equal-value principle. Contrary, in South Africa, the legislation does not cater for the establishment of a Pay Equity Commission with exclusive mandate to deal with pay-equity cases. In this regard, the various courts and the CCMA which are mandated to deal with equal-pay disputes are also mandated to deal with other labour disputes emanating from other labour legislation, e.g. the LRA, BCEA, EEA, UIA, OHSA, COIDA, etc. The Review Officers in the Pay Equity Office in Ontario are mandated to monitor the implementation and maintenance of the Pay Equity Plans as per section 34 of the Pay Equity Act in Ontario. In South Africa, the EEA makes provision for DG Review process in terms of section 43, where the DG of Labour can subject any organization for a review to assess its compliance with the requirements of the EEA as whole, and not specifically to assess the implementation of the principle of equal pay for work of equal value. Notably, assessment of income differentials to promote equal pay may form part of the DG review process. In light of the above best practices / lessons learned, the following recommendations are made to inform the improvement plans of the implementation of the principle of equal pay for work of equal value in the South African labour market: Conducting of continuous advocacy campaigns to raise awareness and educate all stakeholders, i.e. employers, employees and trade unions on the principle of equal pay for work of equal value. Development of further policy guidelines in relation to equal pay consultations within the workplace between the employer and the employees, including where applicable registered trade unions. A policy directive on the “equal-pay consultation” will promote not only transparency around pay and benefit structures, but will encourage proactive measures from employers to develop pay/remuneration policies, including establishing remuneration committees; conducting job evaluations; implementing job-grading systems and performance-evaluation systems to promote the implementation of the principle of equal pay for work of equal value. 2 SS 115(4) and 158(1)(j) of 66 of 1995. Minimum wage-setting bodies should have the duty to apply the principle of equal pay for work of equal value in the setting of minimum wages. Collective bargaining structures such as bargaining councils should have a duty to apply and enforce the principle of equal pay for work of equal value in the wage-negotiation process and conclusion of collective agreements. Given the importance of collective bargaining in wage-setting in South Africa, there should be a duty on the social partners to include the principle of equal pay for work of equal value in all collective agreements. Industry-wide comparisons should be utilized, particularly in sectors in which collective bargaining operates at a sectoral level. Alternatively, the “Proxy” method as developed in Ontario, should be considered. Proportionate pay, as developed in Ontario, should be considered in cases where there is no comparator doing work of equal value, employed by the same employer. Possible legislative amendments to section 27 of the EEA to include a new provision, requiring employers to develop and implement a Pay Equity Plan outlining how they intend complying with the principle of equal pay for work of equal value. Then an annual progress report must be submitted to the Director General of Labour on how the Pay Equity Plan has been implemented instead of the current submission of an Income Differential Statement to the ECC. Finally, compliance with the principle of equal pay for work of equal value is required as a condition for accessing State Contracts under section 53 of the EEA when this section is promulgated in the near future. It can be deduced from the review process that the principle of equal pay for work of equal is a complex and specialized area. However, it was also clear that in both South Africa and Canada, the issue of equal pay is seen, not only as a workplace issue, but as an important Constitutional fundamental human-right imperative to the achievement of equality in a society as a whole.
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  • Date Issued: 2017

Affirmative action as a strategy for social justice in South Africa

  • Authors: Sinuka, Zamile Hector
  • Date: 2017
  • Subjects: Affirmative action programs -- Law and legislation -- South Africa , Social justice -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/20362 , vital:29268
  • Description: The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.
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  • Date Issued: 2017

An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa

  • Authors: Wazvaremhaka, Tinashe
  • Date: 2017
  • Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/9045 , vital:34221
  • Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
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  • Date Issued: 2017

An evaluation of affirmative action in public sector

  • Authors: Myoli, Vuyiseka Marly
  • Date: 2017
  • Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/14190 , vital:27443
  • Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
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  • Date Issued: 2017

Appointment and promotion disputes in the public education sector

  • Authors: Rustin, Jonavon Keith
  • Date: 2017
  • Subjects: Labor disputes -- South Africa Education -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/20277 , vital:29182
  • Description: Promotions and appointments in the Public Education Sector had led to many disputes that were referred to the Education Labour Relations Council (the "ELRC"). For a long time most disputes referred to the ELRC concerned promotion disputes. In this treatise the applicable law relating to the promotions and appointments is described and evaluated. Shortly before the completion of the treatise a collective agreement was concluded under the auspices of the ELRC with a view to regulating appointments and promotions. The historical background is traced and the present legislative framework is explained. Thereafter the ELRC Resolutions dealing with the topic discussed and the new collective agreement is unpacked.
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  • Date Issued: 2017

Blessing or curse? : an evaluation of the African Growth Opportunity Act

  • Authors: Matenga, Lloyd
  • Date: 2017
  • Subjects: United States -- African Growth and Opportunity Act Tariff preferences Terms of trade
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/8825 , vital:33667
  • Description: The core of the commercial relations between the United States (US) and Sub-Saharan African (SSA) countries is primarily based on the advancement of unilateral preferential treatment as envisaged under the African Growth and Opportunity Act (AGOA). AGOA is a bipartisan US legislation promulgated to govern the North-South agreement between the US and SSA countries. Notably, AGOA can be categorized as an exception to the Most Favored Nation (MFN) clause of the General Agreement on Tariffs and Trade (GATT) and consequently under the legal framework of the World Trade Organisation (WTO). The US through the AGOA Extension and Enhancement Act (TPEA) has prolonged the lifespan of AGOA to 2025 in consonance with AGOA and other relevant US legislation. However, there is an ongoing debate as to whether AGOA is working to the advantage or benefit of the eligible SSA countries. This is due to several problematic issues which inter alia relate to the legitimacy of the unilateral preferential treatment, the applicable Rules of Origin (RoO) and the requirement for adoption of robust intellectual property protection regimes as impediments to the enjoyment of AGOA duty and quota free benefits. This study will thus examine the pertinent legal issues underpinning the granting of unilateral preferential treatment in favour of the SSA countries under AGOA and assess the extent to which AGOA complies with or fulfills the purposes and objects of the Enabling Clause.
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  • Date Issued: 2017

Comparison of taxation reforms regarding retirement funding between South Africa and the United Kingdom

  • Authors: Kruger, Leander
  • Date: 2017
  • Subjects: Pension trusts -- Law and legislation -- South Africa Pension trusts -- Law and legislation -- Great Britain , Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- Great Britain Pensions -- Law and legislation -- South Africa Pensions -- Law and legislation -- Great Britain
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/18200 , vital:28588
  • Description: The purpose of this study was to review the provision of public and private retirement funding in both South Africa and the United Kingdom and the role of taxation in encouraging greater private provision for retirement. The study described the basis of taxation and determination of ‘taxable income’ in each jurisdiction, before addressing the relationship between taxation and retirement funding in each jurisdiction respectively. Both jurisdictions have introduced significant reforms of their systems of retirement funding and these reforms were accordingly addressed in the present research. The study compared the two jurisdictions based on the above mentioned areas to determine similarities or differences. The study concluded with recommendations, these being that South Africa should assess the feasibility of providing greater State provided retirement funding by possibly including a mandatory contribution, such as that used by the UK for its single-tier flat rate New State Pension. A further recommendation was that South Africa should encourage greater provision of private retirement funding by considering even greater tax deductions for contributions.
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  • Date Issued: 2017

Cross-border assistance in the recovery of foreign tax debt

  • Authors: Barnard, Hugo
  • Date: 2017
  • Subjects: Taxation -- South Africa Tax administration and procedure -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/15989 , vital:28302
  • Description: Internationally, there is a growing drive towards inter-governmental assistance with tax matters, including assistance in the collection of outstanding tax debt. The purpose of this study is the consider the development of South Africa’s ability to assist with the collection of foreign tax debt. The South African common law revenue rule precludes South Africa from rendering assistance with the recovery of a foreign tax debt. The revenue rule, however, may be abrogated through legislation. Analysis of section 93 of the Income Tax Act1 and section 185 of the Tax Administration Act2 indicates that a pre-requisite for South Africa to render assistance with the collection of a tax debt is the existence of an international tax agreement between South Africa and the requesting state which makes provisions for such assistance. It was also found that the South African Revenue Service (SARS) would not be able to rely on section 172 of the Tax Administration Act in order to obtain a civil judgement for recovery of a foreign tax debt. Interpretation of these provisions in light of the Constitution3 and the Promotion of Administrative Justice Act4 (PAJA) indicates that they do not violate the Constitution, but actions taken by SARS may be subject to judicial review under the PAJA. After analysis of South Africa’s bilateral international tax agreements, it was found that 22 agreements contain provisions for assistance with collection of a tax debt. A review of the Multilateral Convention for Mutual Administrative Assistance in Tax Matters indicates that South Africa and 73 other countries are bound by it. Analysis of the provisions of the international tax agreements and the South African case law dealing with conflicts between international agreements and domestic legislation indicates that the South African courts would give preference to the provisions of the international agreement over domestic legislation in the case of a conflict. A review of selected cases involving assistance provisions in international tax agreements suggests that the South African courts will apply the assistance provisions to taxes that arose prior to the effective date of the assistance provisions.
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  • Date Issued: 2017

Decolonising the regulation of the right to strike in South Africa : an analysis

  • Authors: Tsanyau, Dauglous
  • Date: 2017
  • Subjects: Right to strike Strikes and lockouts -- South Africa Strikes and lockouts -- Law and legislation
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10353/8813 , vital:33615
  • Description: This study develops a robust approach in addressing conceptual problems surrounding the implementation of the right to strike in South Africa. The South African labour regime recognises the right of workers to strike as protected in various international, national and regional instruments. The right is guaranteed by section 23 of the Constitution of the Republic of South Africa which bestows on every worker the right to strike. In order to give effect to the rights contained in section 23 of the Constitution, the Labour Relations Act 66 of 1995 (LRA) was enacted by the South African parliament. Presently, violent strikes have been noted as a prevailing feature of the South African labour landscape. The LRA has possibly perpetually failed to realise its critical objectives as labour unrest still stands as a dominant feature of South Africa. Certainly, the labour legislative framework in place has failed to quench violent strikes whose ugly incidences have continued to haunt South African labour relations. This study therefore intends to be a preliminary examination of these issues and interrogates the labour legislative framework which guarantees the right to strike. The study begins with an outline of the historical development of the right. It defines the right to strike and other related concepts. The study proceeds to unpack the international and regional legislative framework of the right to strike. Further, it explores the effects and consequences of violent strikes with reference to the Marikana labour dispute and other case laws. Finally, focusing on the Marikana strike case, deficiencies in the bargaining system, the use of replacement labour and trade Union Liability, the dissertation offers the practical recommendations for a progressive, peaceful and democratic labour system.
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  • Date Issued: 2017
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