Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
Providing basic conditions in vulnerable sectors
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
- Authors: Sahula, Unathi
- Date: 2012
- Subjects: South Africa. Basic Conditions of Employment Act , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10244 , http://hdl.handle.net/10948/d1019710
- Description: The relationship between workers and employers in South Africa is governed by various labour statutes such as the Basic Conditions of Employment Act (BCEA). The Basic Conditions of Employment Act regulates the working conditions of employees, including working hours, leave, particulars of employment and remuneration and termination of employment, etc. The purpose is to ensure that employees are not exploited and that they do not have to negotiate for these basic conditions of service. The BCEA does not prescribe the minimum remuneration that an employer must pay an employee, so the BCEA empowers the Minister of Labour to make sectoral determinations for sectors or areas of the economy that are typically in a weak bargaining position or not well organised by trade unions. Sectoral determinations are a means to protect vulnerable employees by fixing conditions of employment as well as minimum wages of employees that would otherwise have to be secured through collective bargaining. Employers and employees as well as their representatives are fully consulted during the process of making sectoral determinations. These consultations are held occasionally and the employers and employees can participate in the making of a sectoral determination that will regulate their employment relationship, either by making written submissions to the Department of Labour or by giving input at the public hearings that are usually held by the Department. The Minister is also advised in this regard by a body called Employment Conditions Commission (ECC), which is an independent statutory body established in terms of section 59(1) of the Basic Conditions of Employment Act. The Minister of Labour, after consultation with NEDLAC appoints the commissioners. The ECC’s mandate is a broad one, with its primary function being to advise the Minister of Labour on various matters concerning the BCEA. These include among others, the making of sectoral determinations, monitoring trends in collective bargaining for their possible impact on the BCEA. The issues highlighted above will be dealt with in detail in this paper.
- Full Text:
- Date Issued: 2012
Provocation as a defence in English and South African criminal law
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
- Authors: Krause, Samantha
- Date: 2003
- Subjects: Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11044 , http://hdl.handle.net/10948/310 , Provocation (Criminal law) -- South Africa , Provocation (Criminal law) -- Great Britain
- Description: In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.
- Full Text:
- Date Issued: 2003
Public sector employees and their right to just administrative action
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
- Authors: Kemp, Matthew
- Date: 2018
- Subjects: Administrative acts -- South Africa , Administrative law -- South Africa , Public administration -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30616 , vital:30980
- Description: Prior to the enactment of the Constitution, common law notions such as the audi alteram partem rule, the nemo iudex in sua causa rule and the doctrine of legitimate expectation were extended to protect public-sector employees against unlawful decisions taken against them by their employers. Courts noted the unique relationship between public-sector employees and their employers and that administrative law remedies could be extended to those employees. The enactment of the Constitution brought about two distinct sections in the Bill of Rights which provided for the right to fair labour practices (section 23) and the right to “lawful, reasonable and procedurally fair” administrative action (section 33) respectively. Legislation such as the LRA, BCEA and EEA has been enacted to give effect to section 23 of the Constitution, while the PAJA has been enacted to give effect to section 33. Whether public-sector employees retain their right to seek administrative law remedies against their employers has been the subject of debate for some time. On the one hand it is argued that there should be no problem with there being more than one right affected in a given case and there being more than one legal remedy available to a litigant who finds themselves in such a scenario. On the other hand, it is argued that certain perils, such as forum shopping and dual systems of law will arise if public-sector employees could simply choose either legal remedy. In Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) BCLR 113 (CC) the Constitutional Court held that the applicants could claim relief in terms of sections 9 and 33 of the Constitution as they had specifically based their claims on the rights which they enjoyed in terms of those sections. The court therefore held that the High Court had jurisdiction to hear the matter. X In Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) the applicant approached the High Court on the basis that her constitutional right to just administrative action as contemplated by the PAJA was violated as a result of her dismissal. The majority decision of the Constitutional Court held that the High Court did not have jurisdiction to hear the matter. The applicant’s claim was based on an unfair dismissal dispute for alleged poor work performance. The Constitutional Court therefore held that the applicant should have exhausted the procedures and remedies specifically provided for in the LRA in the case of such a labour dispute. In order to bring clarity to the position of public-sector employees the Constitutional Court in the matter of Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) provided an explanation of why the failure of the state as employer to appoint a candidate to a certain position is quintessentially a labour issue and therefore not administrative action. It followed that the High Court indeed lacked jurisdiction as the dispute was primarily a labour matter, cognisable by the Labour Court. The Gcaba judgment raises a number of interesting legal challenges, such as whether the Constitutional Court has overruled its own judgment in the Fredericks case and to what extent administrative law remedies are still open to public-sector employees. The treatise will discuss the complex constitutional framework which is at play when labour law and administrative law overlap. With a critical analysis of the Gcaba judgment and the principles which it sets, this treatise will discuss the administrative law rights available to public-sector employees.
- Full Text:
- Date Issued: 2018
Public service commission grievance recommendation process
- Authors: King, Lyn Carol
- Date: 2017
- Subjects: Civil service -- South Africa Grievance procedures -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18002 , vital:28552
- Description: The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.
- Full Text:
- Date Issued: 2017
- Authors: King, Lyn Carol
- Date: 2017
- Subjects: Civil service -- South Africa Grievance procedures -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/18002 , vital:28552
- Description: The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.
- Full Text:
- Date Issued: 2017
Pursuing justice in post conflict situations in Africa
- Authors: Ndirangu, Stella Wambui
- Date: 2013
- Subjects: Restorative justice -- Africa , Justice, Administration of -- Africa , Transitional justice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10293 , http://hdl.handle.net/10948/d1020647
- Description: Post conflict justice is a concept that has in the last two decades gained notoriety and support across the world. The commitment by states to fight impunity by embracing accountability measures has increasingly gained support. This however, was not always the case. Before the 1980s the approach by most of the world was to turn a blind eye to serious violations committed during wars, insurgencies and serious conflict. This was done in the name of respecting state sovereignty, where other states were required to respect the conflict state by not intervening irrespective of egregious violations being committed to mankind. The tide eventually changed and many states have adopted numerous instruments as a sign of their commitment to fight impunity and bring accountability to the perpetrators of serious conflict. African states embraced this development, in 1998 during the Rome conference where the Rome Statute for the International Criminal Court was adopted. African states participated in large numbers during the negotiations. Subsequently, African states signed and adopted the Statute overwhelmingly. To date, 33 African States have ratified the Rome Statute making Africa the most represented region in the Rome Statute system. With Africa's share of countless conflicts, where serious human rights violations have been violated, post conflict justice is increasingly a reality in Africa. The application of post conflict justice is an emerging and ever evolving field in Africa. The implementation of post conflict justice has been the center of contested debates. These debates have in the recent past become more pronounced especially where international intervention has been applied in assisting African post conflict societies to deal with the past and bring accountability. The impact that the accountability mechanisms play in restoring a post conflict society has been overshadowed by these debates. This study therefore seeks to provide a balanced discussion on the role that the accountability mechanisms can play in African post conflict societies. The study gives an overview of the evolution of post conflict justice and also looks into the different post conflict justice approaches adopted by African countries and their potential role in accountability and societal healing. The empirical cases of South Africa and Kenya are analysed in the study as practical examples of the application of post conflict justice approaches. The impact of the accountability mechanisms adopted is also discussed. The unique role that the African Union plays in fighting impunity in the continent is also discussed and the impact of positions taken by the continental body on accountability in post conflict countries is analysed. In the end the study seeks to establish the growing pattern in Africa in dealing with post conflict situations and recommendations are made in the final chapter on how to improve the general approach by Africa to eradicate the culture of impunity for serious crimes committed in the continent.
- Full Text:
- Date Issued: 2013
- Authors: Ndirangu, Stella Wambui
- Date: 2013
- Subjects: Restorative justice -- Africa , Justice, Administration of -- Africa , Transitional justice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10293 , http://hdl.handle.net/10948/d1020647
- Description: Post conflict justice is a concept that has in the last two decades gained notoriety and support across the world. The commitment by states to fight impunity by embracing accountability measures has increasingly gained support. This however, was not always the case. Before the 1980s the approach by most of the world was to turn a blind eye to serious violations committed during wars, insurgencies and serious conflict. This was done in the name of respecting state sovereignty, where other states were required to respect the conflict state by not intervening irrespective of egregious violations being committed to mankind. The tide eventually changed and many states have adopted numerous instruments as a sign of their commitment to fight impunity and bring accountability to the perpetrators of serious conflict. African states embraced this development, in 1998 during the Rome conference where the Rome Statute for the International Criminal Court was adopted. African states participated in large numbers during the negotiations. Subsequently, African states signed and adopted the Statute overwhelmingly. To date, 33 African States have ratified the Rome Statute making Africa the most represented region in the Rome Statute system. With Africa's share of countless conflicts, where serious human rights violations have been violated, post conflict justice is increasingly a reality in Africa. The application of post conflict justice is an emerging and ever evolving field in Africa. The implementation of post conflict justice has been the center of contested debates. These debates have in the recent past become more pronounced especially where international intervention has been applied in assisting African post conflict societies to deal with the past and bring accountability. The impact that the accountability mechanisms play in restoring a post conflict society has been overshadowed by these debates. This study therefore seeks to provide a balanced discussion on the role that the accountability mechanisms can play in African post conflict societies. The study gives an overview of the evolution of post conflict justice and also looks into the different post conflict justice approaches adopted by African countries and their potential role in accountability and societal healing. The empirical cases of South Africa and Kenya are analysed in the study as practical examples of the application of post conflict justice approaches. The impact of the accountability mechanisms adopted is also discussed. The unique role that the African Union plays in fighting impunity in the continent is also discussed and the impact of positions taken by the continental body on accountability in post conflict countries is analysed. In the end the study seeks to establish the growing pattern in Africa in dealing with post conflict situations and recommendations are made in the final chapter on how to improve the general approach by Africa to eradicate the culture of impunity for serious crimes committed in the continent.
- Full Text:
- Date Issued: 2013
Ratifying the ILO convention no. 102 (social security minimum standards convention, 1952) by South Africa
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
- Authors: Xakaxa, Xoliswa
- Date: 2018
- Subjects: Social security -- South Africa , Social security -- Law and legislation -- South Africa Labor laws and legislation, International
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/36452 , vital:33945
- Description: Twenty-three (23) years have elapsed since South Africa parted ways with the apartheid system. Nevertheless, poverty, inequality, and unemployment pose the greatest threat to human dignity and social cohesion. Section 27 (1) (c) of the Constitution obligates the state to develop a comprehensive social security system. It affirms the universal right to access social security, including appropriate social assistance for those unable to support themselves and their dependants. It orders the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. The underlying normative commitment of social security is the improvement of the quality of life of the population by promoting economic or material equality. The study provides a general overview of the system of Social Security in South Africa as a Member State of the ILO. In particular, the study underscores that South Africa has not ratified ILO Convention No. 102 Social Security (Minimum Standards) Convention, 1952 and other Conventions relevant to Social Security. The study examines the need to ratify the said Convention in order to receive extensive coverage that would, among other benefits receive guarantees for a well-established system and thereby potentially reduce poverty. The Constitution is the supreme law of the country, it clearly stipulates that when interpreting, and applying the statutes international law must be considered. The study illuminates the significant benefits the country would receive from ratifying Convention No. 102.
- Full Text:
- Date Issued: 2018
Re(viewing) the constitutional court's decision in Sidumo v Rustenburg Platinum Ltd
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009
- Authors: Partington, Jonathan
- Date: 2009
- Subjects: Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10228 , http://hdl.handle.net/10948/1032 , Labor laws and legislation -- South Africa -- Cases , Unfair labour practices -- South Africa -- Cases , Arbitration, Industrial -- South Africa -- Cases , Constitutional courts -- South Africa -- Decision making
- Description: In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.
- Full Text:
- Date Issued: 2009
Re-evaluating the law of vicarious liability in South Africa
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
Recent development concerning the unfair labour practice relating to promotion
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
- Authors: Sotshononda, Ndomelele
- Date: 2017
- Subjects: Unfair labor practices -- South Africa Promotions -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14400 , vital:27581
- Description: This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.
- Full Text:
- Date Issued: 2017
Regulating cartel activity in South Africa
- Authors: Mushi, Walter
- Date: 2012
- Subjects: South Africa. -- Competition Act, 1998 , Antitrust law -- South Africa , Competition
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10286 , http://hdl.handle.net/10948/d1018685
- Description: Competition among firms is a central feature in all free market economies such as South Africa. One of the biggest threats to competition is the presence of cartels in markets. Cartels are firms which collude and compete unfairly in order to obtain monopoly-like profits. For more than fifty years South Africa’s economic landscape has been dominated by a vast network of cartels invital industries, such as bread, cement and fertiliser. South Africa promulgated the Competition Act 89 of 1998 to eradicate cartels and promote and maintain competition within the South African economy. The Competition Act 89 of 1998 prohibits cartel activity and provides for a fine of 10% of turn over for firms found to have engaged in cartel activity. For a variety of reasons, these administrative fines have failed to deter firms from commencing and/or continuing to engage in cartel activity. This is evidenced by the increasing number of firms engaged in large -scale cartels in essential industries, such as construction and food. Public outcry and global trends have persuaded legislators to enactment more stringent penalties in the Competition Amendment Act 1 of 2009. Section 12 of the Competition Amendment Act , which inserts section 73A, creates a cartel of fence in terms of which a director who causes his firm to engage in cartel activity faces ten year imprisonment or a fine of R500, 000. This research shall critically analyse the Competition Amendment Acts effect on deterring cartel activity in South Africa. Despite the legislators’ aim to provide a bigger deterrent for engaging in cartel activity, section 73A of the Competition Amendment Act arouses scrutiny. Firstly, the promulgation of the new cartel offence is contrary to the decimalisation trend in South African company law which recognises the difficulty in enforcing complex regulatory offences with criminal provisions. Secondly, Section 73(5)A appears to infringe an accused director's right to be presumed innocent. Lastly there are co-ordination issues between the National Prosecuting Authority and the Corporate Leniency Policy relating to the granting of prose cutorial immunity for firms which cooperate with the Competition Commission. There search will out line these problems in full. With regards to the problems caused by section 73A, the research will use a comparative analysis with the positionin the United States. Of all the jurisdictions which criminalise cartel activity, the United States was one of the earliest and the most prolific insecuring convictions for directors who cause their firms to engage in cartel activity. The United States has taken innovative steps to supplement their public cartel enforcement drive such as the prosecution of international cartels and the use of private actions. In this regard, the research will extrapolate favourable cartel enforcement measures from the United States for recommendation in order to assist with South Africa’s cartel enforcement and alleviate the problems caused by section 73A, outlined above.
- Full Text:
- Date Issued: 2012
- Authors: Mushi, Walter
- Date: 2012
- Subjects: South Africa. -- Competition Act, 1998 , Antitrust law -- South Africa , Competition
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10286 , http://hdl.handle.net/10948/d1018685
- Description: Competition among firms is a central feature in all free market economies such as South Africa. One of the biggest threats to competition is the presence of cartels in markets. Cartels are firms which collude and compete unfairly in order to obtain monopoly-like profits. For more than fifty years South Africa’s economic landscape has been dominated by a vast network of cartels invital industries, such as bread, cement and fertiliser. South Africa promulgated the Competition Act 89 of 1998 to eradicate cartels and promote and maintain competition within the South African economy. The Competition Act 89 of 1998 prohibits cartel activity and provides for a fine of 10% of turn over for firms found to have engaged in cartel activity. For a variety of reasons, these administrative fines have failed to deter firms from commencing and/or continuing to engage in cartel activity. This is evidenced by the increasing number of firms engaged in large -scale cartels in essential industries, such as construction and food. Public outcry and global trends have persuaded legislators to enactment more stringent penalties in the Competition Amendment Act 1 of 2009. Section 12 of the Competition Amendment Act , which inserts section 73A, creates a cartel of fence in terms of which a director who causes his firm to engage in cartel activity faces ten year imprisonment or a fine of R500, 000. This research shall critically analyse the Competition Amendment Acts effect on deterring cartel activity in South Africa. Despite the legislators’ aim to provide a bigger deterrent for engaging in cartel activity, section 73A of the Competition Amendment Act arouses scrutiny. Firstly, the promulgation of the new cartel offence is contrary to the decimalisation trend in South African company law which recognises the difficulty in enforcing complex regulatory offences with criminal provisions. Secondly, Section 73(5)A appears to infringe an accused director's right to be presumed innocent. Lastly there are co-ordination issues between the National Prosecuting Authority and the Corporate Leniency Policy relating to the granting of prose cutorial immunity for firms which cooperate with the Competition Commission. There search will out line these problems in full. With regards to the problems caused by section 73A, the research will use a comparative analysis with the positionin the United States. Of all the jurisdictions which criminalise cartel activity, the United States was one of the earliest and the most prolific insecuring convictions for directors who cause their firms to engage in cartel activity. The United States has taken innovative steps to supplement their public cartel enforcement drive such as the prosecution of international cartels and the use of private actions. In this regard, the research will extrapolate favourable cartel enforcement measures from the United States for recommendation in order to assist with South Africa’s cartel enforcement and alleviate the problems caused by section 73A, outlined above.
- Full Text:
- Date Issued: 2012
Regulating essential services, maintenance services and minimum services agreements
- Authors: Zama, Ntokozo Patrick
- Date: 2018
- Subjects: Collective labor agreements
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21582 , vital:29637
- Description: South Africa has in the recent past seen employees embarking in strike action, even in sectors designated as essential services. The impact adversely affected inter alia economic growth, investor confidence, international credit ratings and the high rate of unemployment. The Labour Relations Act 66 of 1995 from its inception on 11 November 1996, and as amended, in 2002 and in 2015, has brought about some minor changes to the model aimed at regulating essential services, maintenance services and minimum services agreements. This research is aimed at investigating; whether essential services, maintenance services and minimum services agreements are designed to unjustifiably limit the right to strike or not. The Constitution1 and the Labour Relations Act, 19952 encourages parties in employment relationship to engage in collective bargaining. Mechanisms such as a no duty to bargain envisaged within the current LRA regulatory framework, appears to be undermining the significance of ensuring that parties engaged within services designated as essential and maintenance services exercise their fundamental right to strike and to bargain collectively. The Essential Services Committee when dispensing with its statutory functions may be unjustifiably limiting the right to strike for employees engaged in essential and maintenance services. Some employers may be to some degree reluctant to trigger maintenance services provisions as the LRA appears to be adopting a voluntarism principle when regulating collective bargaining, as the Act is encouraging employers to deal with the provision of maintenance services within collective agreements. An introduction of a judiciable enforceable duty to bargain collectively in services designated as essential and maintenance services may compel employers to conclude minimum services agreements. The extremely low number of services designated as maintenance services is a worrying reality and the solution is urgently required.
- Full Text:
- Date Issued: 2018
- Authors: Zama, Ntokozo Patrick
- Date: 2018
- Subjects: Collective labor agreements
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/21582 , vital:29637
- Description: South Africa has in the recent past seen employees embarking in strike action, even in sectors designated as essential services. The impact adversely affected inter alia economic growth, investor confidence, international credit ratings and the high rate of unemployment. The Labour Relations Act 66 of 1995 from its inception on 11 November 1996, and as amended, in 2002 and in 2015, has brought about some minor changes to the model aimed at regulating essential services, maintenance services and minimum services agreements. This research is aimed at investigating; whether essential services, maintenance services and minimum services agreements are designed to unjustifiably limit the right to strike or not. The Constitution1 and the Labour Relations Act, 19952 encourages parties in employment relationship to engage in collective bargaining. Mechanisms such as a no duty to bargain envisaged within the current LRA regulatory framework, appears to be undermining the significance of ensuring that parties engaged within services designated as essential and maintenance services exercise their fundamental right to strike and to bargain collectively. The Essential Services Committee when dispensing with its statutory functions may be unjustifiably limiting the right to strike for employees engaged in essential and maintenance services. Some employers may be to some degree reluctant to trigger maintenance services provisions as the LRA appears to be adopting a voluntarism principle when regulating collective bargaining, as the Act is encouraging employers to deal with the provision of maintenance services within collective agreements. An introduction of a judiciable enforceable duty to bargain collectively in services designated as essential and maintenance services may compel employers to conclude minimum services agreements. The extremely low number of services designated as maintenance services is a worrying reality and the solution is urgently required.
- 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
Regulatory aspects of carbon credits and carbon markets
- Van Huyssteen, Roelof Cornelis
- Authors: Van Huyssteen, Roelof Cornelis
- Date: 2015
- Subjects: Climatic changes -- Law and legislation , Climate change mitigation -- South Africa , Climatic changes -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5086 , vital:20801
- Description: Regulating carbon markets in order to fight the effects of climate change has in recent years become an integral part of many economies around the world. Ensuring that policymakers implement market-based climate change legislation according to international best practice is an essential part to guarantee that a carbon market system operates smoothly within a country’s economy. There are many opportunities that exist in South Africa towards developing a lucrative carbon market; however, the information to implement such a system is hard to come by and complex to analyse. This dissertation will aim to shed some light on this relatively new field of the law as it will provide an overview of international best practice within the carbon market sphere. Furthermore, this dissertation will examine the legal nature of a carbon credit; analyse international instruments regulating carbon markets and discuss existing South African policies and legislation related to climate change and carbon markets. This will lead to the ultimate objective of this dissertation: to propose a possible framework for the regulation of a South African carbon market based upon international best practice. This dissertation revealed the imperative need for South African policymakers to implement legislation to conform to international best practice within carbon markets. In this regard the dissertation also revealed that the infrastructure to regulate such a market already exists within South Africa. Only subtle changes to these infrastructure systems will be required in order for to accommodate a functioning carbon market. The study revealed that the only way to convince entities around the world to emit fewer emissions and to contribute towards the fight against climate change is to attach a monetary value to emissions. Associating a price to carbon is the only way to sanction entities that produce emissions and compensate entities that mitigate emissions. A carbon tax coupled with a carbon offset mechanism, as opposed to a emissions trading scheme, would be the best option with regards to establishing a South African carbon policy. This will ensure a fair playing field, as carbon tax liable entities would be held responsible to pay the same fixed price per ton of carbon that they emit. Coupling the carbon tax with a carbon offset mechanism, trading with carbon credits, will incentivise companies to invest in “greener” technologies and to emit fewer emissions. This dissertation revealed that international best practice in the carbon market sphere, still poses significant difficulties such as price volatility associated with carbon credits; validation and verification inconsistencies within the different carbon standards; and supply and demand fluctuations. These difficulties where highlighted in this dissertation and solutions relating to these difficulties were discussed. The time has come for South Africa to enter the carbon market sphere, whether it be through the introduction of a carbon tax or otherwise. This dissertation illustrates that the infrastructure and stakeholders associated to a South African carbon market needs to be developed. If, when and how the government will actually implement such a carbon market system, remains a question to be answered.
- Full Text:
- Date Issued: 2015
- Authors: Van Huyssteen, Roelof Cornelis
- Date: 2015
- Subjects: Climatic changes -- Law and legislation , Climate change mitigation -- South Africa , Climatic changes -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5086 , vital:20801
- Description: Regulating carbon markets in order to fight the effects of climate change has in recent years become an integral part of many economies around the world. Ensuring that policymakers implement market-based climate change legislation according to international best practice is an essential part to guarantee that a carbon market system operates smoothly within a country’s economy. There are many opportunities that exist in South Africa towards developing a lucrative carbon market; however, the information to implement such a system is hard to come by and complex to analyse. This dissertation will aim to shed some light on this relatively new field of the law as it will provide an overview of international best practice within the carbon market sphere. Furthermore, this dissertation will examine the legal nature of a carbon credit; analyse international instruments regulating carbon markets and discuss existing South African policies and legislation related to climate change and carbon markets. This will lead to the ultimate objective of this dissertation: to propose a possible framework for the regulation of a South African carbon market based upon international best practice. This dissertation revealed the imperative need for South African policymakers to implement legislation to conform to international best practice within carbon markets. In this regard the dissertation also revealed that the infrastructure to regulate such a market already exists within South Africa. Only subtle changes to these infrastructure systems will be required in order for to accommodate a functioning carbon market. The study revealed that the only way to convince entities around the world to emit fewer emissions and to contribute towards the fight against climate change is to attach a monetary value to emissions. Associating a price to carbon is the only way to sanction entities that produce emissions and compensate entities that mitigate emissions. A carbon tax coupled with a carbon offset mechanism, as opposed to a emissions trading scheme, would be the best option with regards to establishing a South African carbon policy. This will ensure a fair playing field, as carbon tax liable entities would be held responsible to pay the same fixed price per ton of carbon that they emit. Coupling the carbon tax with a carbon offset mechanism, trading with carbon credits, will incentivise companies to invest in “greener” technologies and to emit fewer emissions. This dissertation revealed that international best practice in the carbon market sphere, still poses significant difficulties such as price volatility associated with carbon credits; validation and verification inconsistencies within the different carbon standards; and supply and demand fluctuations. These difficulties where highlighted in this dissertation and solutions relating to these difficulties were discussed. The time has come for South Africa to enter the carbon market sphere, whether it be through the introduction of a carbon tax or otherwise. This dissertation illustrates that the infrastructure and stakeholders associated to a South African carbon market needs to be developed. If, when and how the government will actually implement such a carbon market system, remains a question to be answered.
- Full Text:
- Date Issued: 2015
Restraint of trade in the employment context
- Authors: Luckman, Peter Craig
- Date: 2007
- Subjects: Restraint of trade -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10203 , http://hdl.handle.net/10948/842 , Restraint of trade -- South Africa , Labor contract -- South Africa
- Description: Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.
- Full Text:
- Date Issued: 2007
- Authors: Luckman, Peter Craig
- Date: 2007
- Subjects: Restraint of trade -- South Africa , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10203 , http://hdl.handle.net/10948/842 , Restraint of trade -- South Africa , Labor contract -- South Africa
- Description: Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.
- Full Text:
- Date Issued: 2007
Rethinking minimum sentence Legislation
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
- Authors: Goliath, Alphonso Augustine
- Date: 2020
- Subjects: Sentences (Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47370 , vital:39851
- Description: The harsh mandatory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, seemed like a good idea to politicians, as a means of countering the escalating crime rate experienced when South Africa transitioned to its new democracy, and to appease the public that something is being done about the issue. The plan was that everyone who committed the same crime would receive the same guaranteed sentence. Judges and Magistrates can only deviate from the predetermined sentences if they are satisfied that substantial and compelling circumstances exist, which would justify the imposition of a lesser sentence, limiting their flexibility. By doing so sentences would always be fair, politicians could be seen to be tough on crime and everyone would be satisfied. Unfortunately, this is not how minimum sentencing legislation turned out to be, as research has shown that it is not a deterrent for crime in South Africa or anywhere else. Instead of achieving consistency in sentencing, it worsens inconsistencies and disparities. With minimum sentencing legislation, the sentence for drug trafficking and murder is the same. Instinctively, human beings want to be safe and secure, but to lock up non-violent people for years will not make people feel safer. Due to the increased number of people serving life sentences and because non-violent offences are incorporated in the minimum sentencing legislation, our prison population has increased rapidly. Minimum sentencing legislation has several negative consequences, at a huge cost to South Africans, of which overcrowding of prisons is the most significant. Courts were tolerant with the poor language of the minimum sentencing legislation, as it was only supposed to be a temporary emergency measure against the high escalating violent crime experienced in South Africa post-1994. Since this Legislation became permanent in 2007, it is considerably different from the one considered in S v Dodo and a constitutional challenge is justifiable. With reference to the above, this research will reveal that minimum sentencing legislation did not deliver the desired results South Africa was hoping for and it is a vii major contributor to South Africa’s social retrograde. The rethinking of minimum sentencing legislation becomes imperative, bearing in mind that South Africa has previously researched sentencing alternatives at its disposal.
- Full Text:
- Date Issued: 2020
Rights to reality - the right to social security, with particular emphasis on the legal resources centre's welfare project in the Eastern Cape
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
- Full Text:
- Date Issued: 2003
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
- Full Text:
- Date Issued: 2003
Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
Sending and receiving: immunity sought by diplomats committing criminal offences
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
Sexual abuse within the context of public education
- Authors: Strydom, Jeanette
- Date: 2012
- Subjects: Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10238 , http://hdl.handle.net/10948/d1012156 , Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Description: The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
- Full Text:
- Date Issued: 2012
- Authors: Strydom, Jeanette
- Date: 2012
- Subjects: Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10238 , http://hdl.handle.net/10948/d1012156 , Sexual harassment in education -- Law and legislation -- South Africa , Students -- Legal status, laws, etc. -- South Africa , Child sexual abuse by teachers , School violence -- South Africa
- Description: The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
- Full Text:
- Date Issued: 2012