The principle of complementarity : a critical analysis of Article 17 of the Rome Statute from an African perspective
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
- Full Text:
- Date Issued: 2014
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
- Full Text:
- Date Issued: 2014
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
The legal protection of foreign direct investment in the new millennium :a critical assessment with a focus on South Africa and Zimbabwe
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
- Date Issued: 2016
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
- Full Text:
- Date Issued: 2016
The national health insurance bill: a measure to realise the right to access health care services
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
- Authors: Moyo, Priscilla Tariro
- Date: 2020
- Subjects: Medical laws and legislation -- South Africa , Health insurance -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49016 , vital:41593
- Description: The right to access health care services is enshrined in section 27 of the Constitution. It is a right afforded to everyone. The state is required to adopt legislative and other measures for the progressive realisation of this right. To that effect, the state has passed various pieces of legislation aimed at realising the right to access health care services. The key legislative measures regulating the health system are the National Health Act, the Medical Schemes Act and the Medicines Act. Despite the various legislative measures in place, not everyone has access to health care services and there is a need for reform in the health system. To remedy the problem of inaccessibility, the government introduced the NHI Bill in 2018 which was amended in 2019. The NHI Bill purports to amend the way in which health services are financed. The purpose of this research is to determine the constitutionality of selected aspects of the NHI Bill. Section 27(2) of the Constitution requires that any measure adopted by the state in realising the right to access health care services must be reasonable. This research, therefore, assesses whether the NHI Bill is a reasonable measure that meets the requirements of section 27(2). The NHI Bill will be assessed in light of the reasonableness review used to assess state compliance with the obligation in terms of section 27. In assessing the reasonableness of the NHI Bill, reference is made to the domestic obligations of the state to realise the right to access health care services, the context in which the NHI Bill was published, the provisions of international law, and the impact the NHI Bill will have on other rights specifically the right to equality. The findings of this research are that the NHI Bill is likely to be found unconstitutional insofar as it unfairly discriminates against asylum seekers and undocumented migrants and lacks clarity with respect to important issues such as the role of medical schemes. Based on this analysis, recommendations are made to ensure that the NHI Bill is constitutionally sound.
- Full Text:
- Date Issued: 2020
Alcoholism and being under the influence of alcohol
- Authors: Maliti, Zandisile
- Date: 2016
- Subjects: Alcoholism and employment , Misconduct in office , Alcoholism -- Diagnosis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8416 , vital:26354
- Description: Being under the influence of alcohol at work or during working hours is dealt with as misconduct. On the other hand, in a case where an employee suffers from alcoholism, such a case is treated as incapacity due to ill health. The possibility of overlap between the two has contributed to a misconception. Alcoholism cases, are at times, incorrectly treated as misconduct. The same applies to cases of being under the influence of alcohol where such cases would be treated as incapacity instead of being treated as misconduct. The distinction between alcoholism and being under the influence of alcohol was made clear in Transnet Freight Rail v Transnet Bargaining Council C644/2009 [2011] ZALCJHB (4 March 2011) where the Labour Court held that employers have an obligation of assisting employees who suffer from alcoholism with counselling and rehabilitation. Such an obligation does not arise when an employee, who is not an alcoholic, comes to work under the influence of alcohol. Whilst the nature of work is taken into consideration in determining whether an employee is under the influence of alcohol or not, the major cause of disharmony in the determination is a common defence of having consumed alcohol during a night before and whether the physical observations combined with positive breathalyser test results or on their own are indicative, on the balance of probabilities, that an employee is under the influence of alcohol or not. There is no need for an employee to injure himself or herself or other employees before a determination is made that he or she is under the influence of alcohol. Physical observations combined with breathalyzer test results, can be indicative of an employee that is being under the influence of alcohol. The nature of work should be an aggravating or mitigating factor rather than a determining factor of guilt.
- Full Text:
- Date Issued: 2016
- Authors: Maliti, Zandisile
- Date: 2016
- Subjects: Alcoholism and employment , Misconduct in office , Alcoholism -- Diagnosis
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8416 , vital:26354
- Description: Being under the influence of alcohol at work or during working hours is dealt with as misconduct. On the other hand, in a case where an employee suffers from alcoholism, such a case is treated as incapacity due to ill health. The possibility of overlap between the two has contributed to a misconception. Alcoholism cases, are at times, incorrectly treated as misconduct. The same applies to cases of being under the influence of alcohol where such cases would be treated as incapacity instead of being treated as misconduct. The distinction between alcoholism and being under the influence of alcohol was made clear in Transnet Freight Rail v Transnet Bargaining Council C644/2009 [2011] ZALCJHB (4 March 2011) where the Labour Court held that employers have an obligation of assisting employees who suffer from alcoholism with counselling and rehabilitation. Such an obligation does not arise when an employee, who is not an alcoholic, comes to work under the influence of alcohol. Whilst the nature of work is taken into consideration in determining whether an employee is under the influence of alcohol or not, the major cause of disharmony in the determination is a common defence of having consumed alcohol during a night before and whether the physical observations combined with positive breathalyser test results or on their own are indicative, on the balance of probabilities, that an employee is under the influence of alcohol or not. There is no need for an employee to injure himself or herself or other employees before a determination is made that he or she is under the influence of alcohol. Physical observations combined with breathalyzer test results, can be indicative of an employee that is being under the influence of alcohol. The nature of work should be an aggravating or mitigating factor rather than a determining factor of guilt.
- Full Text:
- Date Issued: 2016
The best interests of the child witness in disciplinary cases of educators
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
The combined exclusive maritime zone of Africa
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
- Authors: Du Plooy, Inalize
- Date: 2017
- Subjects: Maritime law -- Africa Law of the sea , Economic zones (Law of the sea) -- Africa Territorial waters -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/16109 , vital:28321
- Description: The AIMS is Africa’s first comprehensive maritime strategy. Adopted in 2014, the AIMS proposes unique objectives to address the common maritime challenges faced by African States. One of these objectives is the establishment of the Combined Exclusive Maritime Zone of Africa (CEMZA). The AIMS states that CEMZA, “will grant Africa enormous crosscutting geostrategic, economic, and political, security and social benefits, as well as minimize the risks of all transnational threats including organized crime and terrorism in Africa”. This dissertation, consequently, aims to provide an overview of the impact which the successful establishment of the CEMZA would have on the African Maritime Domain (AMD) with a focus on sectors such as intra-African trade, vessel-source marine pollution, maritime security and fisheries. This study, furthermore, aims to determine the advantages of the CEMZA as well as the steps which would have to be taken to ensure the success of the CEMZA from a legal point of view. Established within this dissertation is the view that the CEMZA would have to be accompanied by various intermediate steps and would function as if the borders between African countries were deemed not to exist for administrative purposes. This would, however, not entail that African States sacrifice their sovereignty regarding resources within their jurisdiction by sharing it with all African States. The resources of each State, therefore, would remain its sovereign property, and the pooling of resources within the CEMZA would be absent. This dissertation concludes by stating that the CEMZA is feasible in the long term. Owing to the political and legal challenges, reinforced by a lack of capacity as well as human and fiscal resources, it is, however, not achievable in the short-to-medium term.
- Full Text:
- Date Issued: 2017
Establishing a fair sanction in misconduct cases
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Francois
- Date: 2013
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor discipline -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10261 , http://hdl.handle.net/10948/d1021217
- Description: It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.
- Full Text:
- Date Issued: 2013
Gender-based affirmative action in the appointment of High Court judges
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
- Authors: Van Heerden, Anneli
- Date: 2017
- Subjects: Affirmative action programs -- South Africa , Women judges Sex discrimination against women -- Employment -- South Africa Women -- Employment -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21263 , vital:29468
- Description: The legitimacy of the judiciary is dependent on the racial and gender diversity of the courts. As a result of the oppressive policies imposed by the apartheid government, the High Court judiciary in 1994 was composed almost exclusively of white men. Judges were appointed at the behest of the executive arm of government and political considerations undoubtedly played a role in the selection process. As a result, the integrity of the judiciary was severely compromised in that the composition was entirely unrepresentative of the population it served, and they were appointed in order to further the strict racial policies of the apartheid government. The Constitution of the Republic of South Africa came into being through multi-party negotiations and is to form the basis of a complete transformation of the South African society. In a clear move away from the judicial appointments procedure of the past, the Constitution specifies that judges are to be selected by the Judicial Services Commission which is an independent body composed of members from all three branches of the government. In its selection, the JSC is guided by section 174(2) of the Constitution which requires that the racial and gender demographics of the judiciary must be considered when judges are appointed so as to make the bench broadly reflective of the South Africa population. Systemic discrimination of the past denied women the opportunity to gain the necessary knowledge and experience to be eligible for appointment to the bench. Special measures are therefore needed to advance women’s career path to the judiciary. In 2010, the Judicial Services Commission adopted selection criteria to be considered when shortlisting and selecting candidates to be recommended to the President for judicial appointment. Included in these criteria is the consideration of symbolism and potential. Special measures to advance persons who were previously disadvantaged by discriminatory practices are permissible in terms of section 9(2) of the Constitution. It recognises that true substantive equality will not be achieved without special measures aimed at remedying to disadvantage still felt by many people in South Africa, including women. The imposition of such measures does, however, have limitations. In the judiciary, specifically, demographic considerations can not be the primary consideration when judges are appointed. This could lead to a judiciary that is incapable to dispense justice to the population it serves because it does not have the required skill, knowledge and experience. On the other hand, if judges are appointed solely on technical merit, the judiciary is likely to remain male-dominated. The JSC therefore has to carefully balance the need for demographic transformation of the judiciary with the need to appoint technically competent judges. In Minister of Finance v van Heerden, the Constitutional Court laid down three requirements which remedial measures must meet in order to pass constitutional muster. Firstly, the beneficiaries targeted by the remedial measure must be persons who have been discriminated against in the past. Secondly, it must be designed to protect or advance previously disadvantaged persons. Lastly, the remedial measures must promote the achievement of equality in the long term. Once a measures meets all three of these requirements, it is not considered to be unfair discrimination against previously advantaged persons who do not stand to benefit from the measure in question. To safeguard the independence of the judiciary, judges are not considered to be employees of the state. This means that the provisions contained in labour legislation which requires the adoption of a formal employment equity plan when imposing affirmative action measures is not directly applicable to the appointment of judges. The Promotion of Equality and Prevention of Unfair Discrimination Act envisages the adoption of equality plans in all spheres not governed by labour legislation. These provisions are, however, not yet in force. As a result, there is no legislation that requires the Judicial Services Commission to adopt a formal affirmative action policy, and appointments made to address the gender imbalances on the judiciary are made on an ad hoc basis which runs counter to the test formulated in van Heerden. A related problem is that the Judicial Services Commission has not given sufficient content on the criteria needed for judicial appointment. For instance, even though the Judicial Services Commission does consider the technical competence, it has not published any guidance as to what is considered to be the minimum threshold of formal qualifications or experience needed to be appointed to judicial office. This has led many people to speculate that certain judges are appointed for ulterior purposes or, alternatively, that there exists some racial or gender bias within the Judicial Services Commission. This holds unfortunate consequences for the perceived legitimacy of the judiciary and strengthens the call for more structure and clarity in the appointment of judges.
- Full Text:
- Date Issued: 2017
An evaluation of South Africa's legislation to combat organised crime
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
Evaluating the exclusion of certain categories of workers from the coverage of the unemployment insurance act 63 of 2001 and the consequences thereof
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
- Authors: Ncamane, Ntando
- Date: 2020
- Subjects: Social security
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18347 , vital:42254
- Description: The South African Unemployment Insurance system esteems from Social Insurance as a stream of Social Security, which consist of various elements, such as private savings, social assistance and social relief as well as social insurance. The Unemployment Insurance Act 63 of 2001 together with its sister Act, which is the Unemployment Insurance Contribution Act 4 of 2002 regulate South Africa’s unemployment insurance system. The Unemployment Insurance Act made provision for the establishment of the Unemployment Insurance Fund, which will pay unemployment benefits to certain categories of employees for unemployment, illness, maternity, adoption and dependents benefits. The UIA further makes provision for the establishment of the Unemployment Insurance Board and the appointment of the Unemployment Insurance Commissioner. The UIA applies to all employers and employees including domestic workers and seasonal workers, except to employees who work for less than 24 hours a month, employees who are employed on a leanership registered under the Skills Development Act 97 of 1998 and employees employed by the national or provincial government. Although the new Unemployment Insurance Amendment Bill makes provision for workers who were previously excluded from the coverage to be covered under the Amendment Act, these workers includes, workers on learnership, government workers and migrant workers. However, there are still some workers who do not enjoy the scope and application of the UIA those workers are workers working in the informal sector and employees who work less than 24 hours a month and workers who voluntary resign. Apart from the challenge of coverage, the study also examines other challenges faced by the UIA such as non-compliance with international standards, failure to minimise unemployment, discrimination of women against unemployment benefits, the short financial intervention provided by the UIF and the lack of proper dispute resolution mechanism. It is therefore the aim of this study to evaluate the exclusionary practice of the UIA and its repercussions on these certain categories of workers mentioned above. To achieve this abovementioned aim, the study embarks on a journey in which the background is outlined; the historical background of both social security and unemployment insurance including both the constitutional and legislative background (vi) is examined. The study scrutinises the unemployment insurance legal framework this include the structure of the UIF, benefits paid by the UIF, requirements for qualifying for benefits stipulated by the UIA. It goes further in scrutinising these certain categories of workers and other notable challenges of the UIA and UIF. Lastly but not least, an International Perspective and Comparative study is engaged on, so to outline relevant international instrument to the study and to get a better understanding of other countries unemployment insurance system and to enable South Africa to learn from these countries to enhance its unemployment insurance. Finally, recommendations are made to provide solutions to the UIA shortcomings identified in this study.
- Full Text:
- Date Issued: 2020
Workplace discipline in the public education sector
- Authors: Loliwe, Fezeka Sister
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
- Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
- Full Text:
- Date Issued: 2014
- Authors: Loliwe, Fezeka Sister
- Date: 2014
- Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
- Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
- Full Text:
- Date Issued: 2014
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
The criminalization of consensual sexual acts between children
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
Regulation of minimum wages and minimum conditions of employment in the citrus industry in the Gamtoos river valley
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
- Authors: Colesky, Rienette
- Date: 2019
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38002 , vital:34279
- Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
- Full Text:
- Date Issued: 2019
The employment relationship of employees employed in terms of section 56 and 57 in the local government sector
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
- Authors: Kruger, Willem Adriaan
- Date: 2013
- Subjects: Employees -- South Africa , Local government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10272 , http://hdl.handle.net/10948/d1018634
- Description: Since the democratisation of South Africa in 1994, new emphasis was placed on therole of structures of authority put in place by government. As in most other countries these structures operate on national, provincial and local levels. Particular prominence was placed on local authorities, responsible to act as custodians of the communities they serve by rendering essential services and products, upholding the local democracy and complying to the democracy’s developmental role within their jurisdiction. Management of local authorities are highlighted because of the direct and visual delivery of essential services to the communities they serve. The prominence of their responsibilities, more than in other spheres of government, are emphasised by the fact that its efficacy is critically and directly tested on an on-going basis by the communities within its boundaries – it affects the life and often the quality of life of almost everybody. Local authorities derive their status and power from the Constitution which states, inter alia, that the executive and legislative authority of municipalities is vested in their municipal council. Furthermore municipalities have the right to govern on own initiative the local government affairs of their communities subject to national and provincial legislation but with the proviso that these levels of government are not allowed to compromise or impede on the municipality’s ability or right to properly perform its functions or exercise its rights. In terms of the Constitution the municipal councils are democratically elected bodies based on the multiparty political dispensation of the community. In accordance the governance of a municipality is vested in the politically convictions and preferences of the council who, by virtue of legislation applicable to local authorities, is entitled to appoint the Municipal Manager and Managers reporting directly to it. Since councils are term bound elected bodies – which in addition may change its composition due to interim and by-elections and the transient nature of political expediencies – the appointment of municipalities’ senior executives are for limited duration only, with terms linked to those of the councils.This treatise will focus on the effect of the above on these managers and their ability to fulfil their constitutional duties with professionalism, fairness and objectivity whilst endeavouring to juggle community needs, political preferences, and self-preservation without impacting negatively on the provision of service of excellence. Specific attention will be given to practices that evolved within the sphere of local authorities pertaining to this type of employee and the compliances and conflicts of such with existing and proposed amended labour legislation – both factual and within the spirit and intent of the Constitution. Due to the intricate relationship between the different spheres of government and legislation involved, it was necessary to first deal with the background against which senior municipal managers are employed in order to discuss the employment relationship per se.
- Full Text:
- Date Issued: 2013
The consequences of unlawful and prohibited contracts of employment in labour law
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
- Authors: Salim, Raya Said
- Date: 2009
- Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
- Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
- Full Text:
- Date Issued: 2009
The regulation of agricultural subsidies in the World Trade Organization framework : a developing country perspective
- Authors: Chigavazira, Farai
- Date: 2015
- Subjects: Foreign trade regulation -- Developing countries Agricultural laws and legislation -- Developing countries Tariff on farm produce -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/1874 , vital:27569
- Description: The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.
- Full Text:
- Date Issued: 2015
- Authors: Chigavazira, Farai
- Date: 2015
- Subjects: Foreign trade regulation -- Developing countries Agricultural laws and legislation -- Developing countries Tariff on farm produce -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/1874 , vital:27569
- Description: The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.
- Full Text:
- Date Issued: 2015
Non-standard employment in terms of the labour relations act
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020
- Authors: Tatchell, Veronique
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/49027 , vital:41594
- Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
- Full Text:
- Date Issued: 2020