The validity of dismissals for refusing to accept changes to terms and conditions of employment
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
- Authors: Bosch, Lauren
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47336 , vital:39848
- Description: Operational circumstances often create the need for employers to change the employment conditions of employees. Such conditions can include difficulty in obtaining raw materials which may require employees to do different work, a takeover or a merger, market shifts, orders from clients, an increase or reduction in work volumes, new technology, or even in some instances skill shortages. Regardless of the reason, in order to allow the business to remain operational, employers are often obligated to change terms and conditions of employment. Section 187 of the Labour Relations Act 66 of 1995 deals with automatically unfair dismissals and lists a number of reasons for dismissal that, if it complies with the requirements listed, the dismissal will be found to be automatically unfair. The definition was amended by the Labour Relations Amendment Act 6 of 2014 as a result of the courts incorrectly interpreting this section in Chemical Workers Industrial Union (CWIU) v Algorax (Pty) Limited (2003 11 BLLR 1081) (Algorax) and Fry's Metals (Pty) Limited v National Union of Metal Workers of South Africa and Others (JA9/01) [2002] ZALAC 25 (Fry’s Metals). Section 187(1)(c) of the LRA has always been contentious due to the fact that the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining are intertwined. The Labour Relations Amendment Act of 2014 brought about significant changes to how section 187(1)(c) should be interpreted and fundamentally changed the enquiry that should be adopted when determining cases of this nature. The main aim of this study is to provide clarity to the question of when will it be valid and fair for an employer, in the course of restructuring his business, to dismiss any of his employees who refuse to accept the proposed changes to the terms and conditions of their employment.
- Full Text:
- Date Issued: 2020
Unfair discrimination relating to mental illness
- Authors: Skosana, Hlengiwe
- Date: 2020
- Subjects: Discrimination -- Mental health
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47443 , vital:39991
- Description: Section 9 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to equality. The Employment Equity Act, the Promotion and Prevention of Unfair Discrimination Act and the Labour Relations Act were promulgated to fulfil the Constitution’s goals of promoting equality and prohibiting unfair discrimination. Section 6(1) of The Employment Equity Act promotes equality in the workplace and prohibits unfair discrimination; section 187 of the Labour Relations Act provides that dismissals on the grounds listed in the section are automatically unfair; and section 6 of the Promotion and Prevention of Unfair Discrimination Act prohibits unfair discrimination in general. International law prohibits unfair discrimination. Article 1 of the International Labour Organisation’s Convention concerning Discrimination in Respect of Employment and Occupation provides that discrimination in the workplace that has the effect of impairing or nullifying equal opportunity or treatment is prohibited; Article 7 of the United Nations Declaration of Human Rights provides that all are equal before the law and are entitled to protection against any discrimination; and the United Nations Charter and the African United Charter on Human and People’s Rights both promote the right to equality. South Africa has signed and/or ratified these international anti-discrimination laws, and is, accordingly, bound by them. The South African anti-discrimination legislation and international anti-discrimination laws prohibit unfair discrimination, whether it is direct or indirect, or on a listed (that is, a specified ground such as race or disability) or unlisted ground, on a policy, rule or practice. Discrimination based on a listed ground is presumed to be unfair. If discrimination is based on an unlisted ground, the complainant must prove that the discrimination is unfair by applying the Harksen v Lane NO 1997 (11) BCLR 1489 (CC) test. The Harksen v Lane NO test asks whether the discrimination has the attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the answer is yes, the discrimination is unfair. Mental illness is not a listed ground, meaning it is unlisted. The Labour Appeal Court and Labour Court have, therefore, had to consider whether discriminating against an employee on the basis of their mental illness is unfair, or dismissing them because of their mental illness constituted an automatically unfair dismissal. In the leading case of New Way Motor & Diesel Engineering (Pty)Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court applied the Harksen v Lane NO test and held that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. In the recent case of Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17, the Labour Court agreed with the Labour Appeal Court decision in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland that dismissing an employee because of their mental illness is automatically unfair in terms of section 187(1)(f) of the LRA, and unfair discrimination in terms of section 6(1) of the EEA. Despite the consistency in case law, the anti-discrimination legislation does not list mental illness as an unfair ground, which means unfairness cannot be presumed. The complainant must, accordingly, prove the dismissal is automatically unfair in terms of section 187(1)(f) of the LRA or that it is unfair discrimination in terms of section 6(1) of the EEA.
- Full Text:
- Date Issued: 2020
- Authors: Skosana, Hlengiwe
- Date: 2020
- Subjects: Discrimination -- Mental health
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47443 , vital:39991
- Description: Section 9 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to equality. The Employment Equity Act, the Promotion and Prevention of Unfair Discrimination Act and the Labour Relations Act were promulgated to fulfil the Constitution’s goals of promoting equality and prohibiting unfair discrimination. Section 6(1) of The Employment Equity Act promotes equality in the workplace and prohibits unfair discrimination; section 187 of the Labour Relations Act provides that dismissals on the grounds listed in the section are automatically unfair; and section 6 of the Promotion and Prevention of Unfair Discrimination Act prohibits unfair discrimination in general. International law prohibits unfair discrimination. Article 1 of the International Labour Organisation’s Convention concerning Discrimination in Respect of Employment and Occupation provides that discrimination in the workplace that has the effect of impairing or nullifying equal opportunity or treatment is prohibited; Article 7 of the United Nations Declaration of Human Rights provides that all are equal before the law and are entitled to protection against any discrimination; and the United Nations Charter and the African United Charter on Human and People’s Rights both promote the right to equality. South Africa has signed and/or ratified these international anti-discrimination laws, and is, accordingly, bound by them. The South African anti-discrimination legislation and international anti-discrimination laws prohibit unfair discrimination, whether it is direct or indirect, or on a listed (that is, a specified ground such as race or disability) or unlisted ground, on a policy, rule or practice. Discrimination based on a listed ground is presumed to be unfair. If discrimination is based on an unlisted ground, the complainant must prove that the discrimination is unfair by applying the Harksen v Lane NO 1997 (11) BCLR 1489 (CC) test. The Harksen v Lane NO test asks whether the discrimination has the attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the answer is yes, the discrimination is unfair. Mental illness is not a listed ground, meaning it is unlisted. The Labour Appeal Court and Labour Court have, therefore, had to consider whether discriminating against an employee on the basis of their mental illness is unfair, or dismissing them because of their mental illness constituted an automatically unfair dismissal. In the leading case of New Way Motor & Diesel Engineering (Pty)Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court applied the Harksen v Lane NO test and held that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. In the recent case of Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17, the Labour Court agreed with the Labour Appeal Court decision in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland that dismissing an employee because of their mental illness is automatically unfair in terms of section 187(1)(f) of the LRA, and unfair discrimination in terms of section 6(1) of the EEA. Despite the consistency in case law, the anti-discrimination legislation does not list mental illness as an unfair ground, which means unfairness cannot be presumed. The complainant must, accordingly, prove the dismissal is automatically unfair in terms of section 187(1)(f) of the LRA or that it is unfair discrimination in terms of section 6(1) of the EEA.
- Full Text:
- Date Issued: 2020
A critical analysis of South African anti-money laundering legislation regarding cryptocurrency
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
- Authors: Bowden, Susan
- Date: 2019
- Subjects: Money laundering -- South Africa , Money -- Law and legislation -- South Africa Electronic funds transfers Money -- Technological innovations
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42107 , vital:36626
- Description: Cryptocurrencies are decentralised virtual currencies, using blockchain technology to process peer-to-peer electronic payments. In 2009, the first successful cryptocurrency, Bitcoin, was established. As a result of the Internet, cryptocurrencies had soon made their way into South Africa. As such, cryptocurrencies are currently not included under the definition of a legal tender and therefore remain unregulated by the legal framework. This issue is examined within this research project. The objectives were to understand the concepts of cryptocurrency, the relevance in the financial sector, the associated risks and to establish whether regulatory interference is necessary for the operation of cryptocurrency. The legal and regulatory framework of cryptocurrencies within Canada, the United States of America and the European Union were compared to that of South Africa. The research explained that cryptocurrencies are decentralised convertible currencies which are secured by cryptography. It highlighted the risks associated with cryptocurrencies, some of which are detrimental due to the wide use of cryptocurrencies. One of the risks included using cryptocurrencies to launder money. In order to mitigate these risks, jurisdictions such as Canada, the United States of America and the European Union have begun to regulate cryptocurrencies by establishing a legal framework for its operation. However, no such legal framework existed in South Africa for the regulation of cryptocurrencies. As a result, the South African Reserve Bank and National Treasury released position papers, which warn consumers of the associated risks. Therefore, the conclusion was made that regulatory intervention is necessary in South Africa. Following this, the recommendation was made to integrate cryptocurrencies into relevant existing legislation. It was recommended that regulation is the most effective method of combatting money laundering using cryptocurrencies.
- Full Text:
- Date Issued: 2019
Accountability of United Nations peacekeepers for sexual violence
- Authors: Maseka, Ntemesha Mwila
- Date: 2019
- Subjects: United Nations -- Peacekeeping forces , Sex crimes Women (International law) Women -- Crimes against Women (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/${Handle} , vital:36279
- Description: Over the last three decades reports of sexual exploitation and abuse by UN peacekeepers while on mission have emerged with predictable regularity. What is particularly disturbing is that peacekeepers, who are viewed as representatives of the international community in the arduous environments in which they operate, commit these crimes against the local population with apparent impunity. This impunity is rooted in the perception that peacekeepers are immune from prosecution for crimes they commit while deployed – which in most cases has not been far from the truth. This dissertation considers whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit sexual violence. The study considers this question from three main angles: the legal status of peacekeepers, the lex specialis prohibition of sexual violence and the domestic application of the law using South Africa as an example. The determination of the legal status of peacekeepers is the first port of call to establish the applicable framework when crimes are committed and the source of their immunity. To achieve this, a framework of UN peacekeeping operations is outlined which considers the origin, constitutional basis and legal principles governing such operations culminating in a definition of peacekeeping. The study relies on the definition of peacekeeping advanced by the Capstone Doctrine which besides sitting at the top of the doctrinal framework governing UN operations, identifies three categories of peacekeepers - military, police and civilian personnel. This distinction is important because each category is subject to different rules. The study concentrates only on the military personnel who form the largest contingent of peacekeepers, who are the most likely offenders and who are immune from host state jurisdiction. It is submitted that while peacekeepers’ immunity is based on the status-of-forces agreement concluded between the UN and a troop-contributing country, the doctrine of sovereign immunity confirms that one State cannot exercise jurisdiction over another State’s armed forces. This does not mean such forces exist in a legal vacuum, but rather the troop-contributing country is obliged to exercise criminal and disciplinary jurisdiction over them. Due to the operational environment of UN peacekeeping operations, IHL is identified as the lex specialis. A synopsis of this densely codified body of law reveals sexual violence is prohibited both expressly and implicitly in treaty and customary law. The study contends with the applicability of IHL to UN peacekeeping operations, drawing the conclusion that while it can be applied, the obligation for enforcement ultimately lies with individual States. South Africa’s legislative framework is examined, specifically the Implementation of the Geneva Conventions Act to determine whether the State complies with its IHL obligations which includes the exercise of criminal jurisdiction over peacekeepers deployed on a UN mission. The study concludes that while there is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, the law – at least in the South African case - is not deficient. Based on the analysis, recommendations are proposed to ensure the accountability of peacekeepers who commit sexual violence.
- Full Text:
- Date Issued: 2019
- Authors: Maseka, Ntemesha Mwila
- Date: 2019
- Subjects: United Nations -- Peacekeeping forces , Sex crimes Women (International law) Women -- Crimes against Women (International law)
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/${Handle} , vital:36279
- Description: Over the last three decades reports of sexual exploitation and abuse by UN peacekeepers while on mission have emerged with predictable regularity. What is particularly disturbing is that peacekeepers, who are viewed as representatives of the international community in the arduous environments in which they operate, commit these crimes against the local population with apparent impunity. This impunity is rooted in the perception that peacekeepers are immune from prosecution for crimes they commit while deployed – which in most cases has not been far from the truth. This dissertation considers whether a lacuna in the existing law causes the impunity and thus lack of accountability of peacekeepers who commit sexual violence. The study considers this question from three main angles: the legal status of peacekeepers, the lex specialis prohibition of sexual violence and the domestic application of the law using South Africa as an example. The determination of the legal status of peacekeepers is the first port of call to establish the applicable framework when crimes are committed and the source of their immunity. To achieve this, a framework of UN peacekeeping operations is outlined which considers the origin, constitutional basis and legal principles governing such operations culminating in a definition of peacekeeping. The study relies on the definition of peacekeeping advanced by the Capstone Doctrine which besides sitting at the top of the doctrinal framework governing UN operations, identifies three categories of peacekeepers - military, police and civilian personnel. This distinction is important because each category is subject to different rules. The study concentrates only on the military personnel who form the largest contingent of peacekeepers, who are the most likely offenders and who are immune from host state jurisdiction. It is submitted that while peacekeepers’ immunity is based on the status-of-forces agreement concluded between the UN and a troop-contributing country, the doctrine of sovereign immunity confirms that one State cannot exercise jurisdiction over another State’s armed forces. This does not mean such forces exist in a legal vacuum, but rather the troop-contributing country is obliged to exercise criminal and disciplinary jurisdiction over them. Due to the operational environment of UN peacekeeping operations, IHL is identified as the lex specialis. A synopsis of this densely codified body of law reveals sexual violence is prohibited both expressly and implicitly in treaty and customary law. The study contends with the applicability of IHL to UN peacekeeping operations, drawing the conclusion that while it can be applied, the obligation for enforcement ultimately lies with individual States. South Africa’s legislative framework is examined, specifically the Implementation of the Geneva Conventions Act to determine whether the State complies with its IHL obligations which includes the exercise of criminal jurisdiction over peacekeepers deployed on a UN mission. The study concludes that while there is a complex relationship between international and national law applicable to peacekeepers when they commit a crime, the law – at least in the South African case - is not deficient. Based on the analysis, recommendations are proposed to ensure the accountability of peacekeepers who commit sexual violence.
- Full Text:
- Date Issued: 2019
An investigation of the extent, effects and impact of Gender-based Violence in Duncan Village, East London
- Authors: Peter, Noma-Afrika
- Date: 2019
- Subjects: Violence -- Sex differences Human rights
- Language: English
- Type: Thesis , Masters , M.Phil (Human rights)
- Identifier: http://hdl.handle.net/10353/16851 , vital:40779
- Description: This research seeks to investigate GBV against women in Duncan Village in the East London area to find out the extent of the prevalence, its effect, and remedial solutions. The study adopted a qualitative method. The data was collected through semi-structured one-to one interviews from 16 participants using systematic random sampling. The findings revealed that GBV is prevalent in Duncan Village. Most of the women residing in Duncan Village are dependent on child support grant and raise their children alone without the support of their biological fathers. The study further revealed that GBV against women often happens during day time and the victims are either married or single women. One of the contributing factors of GBV is unemployment. Therefore, this study recommends that awareness of GBV should be made continuously in communities by the government and stakeholders. In addition, the Commission for Gender Equality and NGOs that deal with GBV should be visible in all wards so that their services are known and utilised. The Department of Women Affairs should be the main driver in ensuring that women from previously disadvantaged communities are economically empowered, for example, by initiating income generating projects. However, they too should first be capacitated on business and financial management skills.
- Full Text:
- Date Issued: 2019
- Authors: Peter, Noma-Afrika
- Date: 2019
- Subjects: Violence -- Sex differences Human rights
- Language: English
- Type: Thesis , Masters , M.Phil (Human rights)
- Identifier: http://hdl.handle.net/10353/16851 , vital:40779
- Description: This research seeks to investigate GBV against women in Duncan Village in the East London area to find out the extent of the prevalence, its effect, and remedial solutions. The study adopted a qualitative method. The data was collected through semi-structured one-to one interviews from 16 participants using systematic random sampling. The findings revealed that GBV is prevalent in Duncan Village. Most of the women residing in Duncan Village are dependent on child support grant and raise their children alone without the support of their biological fathers. The study further revealed that GBV against women often happens during day time and the victims are either married or single women. One of the contributing factors of GBV is unemployment. Therefore, this study recommends that awareness of GBV should be made continuously in communities by the government and stakeholders. In addition, the Commission for Gender Equality and NGOs that deal with GBV should be visible in all wards so that their services are known and utilised. The Department of Women Affairs should be the main driver in ensuring that women from previously disadvantaged communities are economically empowered, for example, by initiating income generating projects. However, they too should first be capacitated on business and financial management skills.
- Full Text:
- Date Issued: 2019
Automatic termination clauses in employment contracts
- Authors: Ndzendze, Kutala
- Date: 2019
- Subjects: Labor contract -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/41808 , vital:36594
- Description: This study aims to establish Automatic Termination Clauses in Employment contracts by analyzing the provisions of the Constitution of the Republic of South Africa, Labour Relations Act and the precedents. The automatic termination of employment contract means that the contract is terminated without giving an employee the opportunity to state his or her version as per the audi alteram partem principle. In essence, the employee is deprived of his or her right to a fair dismissal as outlined in the Labour Relations Act. The automatic termination clauses in employment contract means that the employment contract will come to an end when the employee’s services are no longer required or when the employer simply does no longer want to keep the employee at work. The Constitution of the Republic of South Africa provides that “everyone has the right to fair labour practices”.1 In terms of the Labour Relations Act (hereinafter referred to as “the LRA”),2 every employee has the right not to be unfairly dismissed. An employment contract between an employee and employer arises out of a contract to perform services. This is so whether the contract is in writing or not. Dismissal is defined in the LRA3 as where the employer has terminated employment with or without a notice. The thesis is composed of five chapters, each of them dealing with different aspects of automatic termination clauses in employment contracts.
- Full Text:
- Date Issued: 2019
- Authors: Ndzendze, Kutala
- Date: 2019
- Subjects: Labor contract -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/41808 , vital:36594
- Description: This study aims to establish Automatic Termination Clauses in Employment contracts by analyzing the provisions of the Constitution of the Republic of South Africa, Labour Relations Act and the precedents. The automatic termination of employment contract means that the contract is terminated without giving an employee the opportunity to state his or her version as per the audi alteram partem principle. In essence, the employee is deprived of his or her right to a fair dismissal as outlined in the Labour Relations Act. The automatic termination clauses in employment contract means that the employment contract will come to an end when the employee’s services are no longer required or when the employer simply does no longer want to keep the employee at work. The Constitution of the Republic of South Africa provides that “everyone has the right to fair labour practices”.1 In terms of the Labour Relations Act (hereinafter referred to as “the LRA”),2 every employee has the right not to be unfairly dismissed. An employment contract between an employee and employer arises out of a contract to perform services. This is so whether the contract is in writing or not. Dismissal is defined in the LRA3 as where the employer has terminated employment with or without a notice. The thesis is composed of five chapters, each of them dealing with different aspects of automatic termination clauses in employment contracts.
- Full Text:
- Date Issued: 2019
Dismissal for ill health or injury and reasonable accommodation for disabled employees
- Authors: Mabenge, Mfundiso Samson
- Date: 2019
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34755 , vital:33437
- Description: This treatise examines the challenges faced by people with disabilities, in particular, dismissal and discrimination at the workplace. The study employed a qualitative approach to explore and address the research questions. It highlights that the Constitution provides protection against discrimination on the ground of disability. This right not to be discriminated against or unfairly dismissed is further given effect by the Codes of Good Practice in both the EEA and the LRA. Dismissal on a prohibited ground of discrimination, such as disability, is not merely unfair, but automatically unfair. Despite the above legislative protection, the findings in this study indicate that South Africa still faces huge challenges of disability discrimination and dismissal. Notwithstanding the increased sensitivity of this subject across the country, applicants for work and employees generally find themselves to be the victims of employment discrimination as well as dismissal due to their disability. Those who are in the working sector are not reasonably accommodated. The study submits that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. In terms of legislation, the study found that although well written in theory, they are practically ineffective given that they are fragmented. This study observes that single legislation dealing comprehensively with disability management, like in other jurisdictions does not exist in South Africa. The lack of such single legislation is a significant weakness in the South African disability management framework. Therefore, this has resulted in a fragmented approach to implementation. The study suggests that trade union representatives and employers should be well trained, particularly on issues relating to dismissal for incapacity in general. From a global perspective, international organisations through ratifying Conventions have also heeded to the plight of disabled persons. This is proof that disability can no longer be confined to the borders of one nation. Many disability organisations have emerged over the years and are representing the interests of the disabled. The findings of this study may help companies, organisations and institutions improve their policy practices regarding the dismissal of employees associated with ill health or injury.
- Full Text:
- Date Issued: 2019
- Authors: Mabenge, Mfundiso Samson
- Date: 2019
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34755 , vital:33437
- Description: This treatise examines the challenges faced by people with disabilities, in particular, dismissal and discrimination at the workplace. The study employed a qualitative approach to explore and address the research questions. It highlights that the Constitution provides protection against discrimination on the ground of disability. This right not to be discriminated against or unfairly dismissed is further given effect by the Codes of Good Practice in both the EEA and the LRA. Dismissal on a prohibited ground of discrimination, such as disability, is not merely unfair, but automatically unfair. Despite the above legislative protection, the findings in this study indicate that South Africa still faces huge challenges of disability discrimination and dismissal. Notwithstanding the increased sensitivity of this subject across the country, applicants for work and employees generally find themselves to be the victims of employment discrimination as well as dismissal due to their disability. Those who are in the working sector are not reasonably accommodated. The study submits that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. In terms of legislation, the study found that although well written in theory, they are practically ineffective given that they are fragmented. This study observes that single legislation dealing comprehensively with disability management, like in other jurisdictions does not exist in South Africa. The lack of such single legislation is a significant weakness in the South African disability management framework. Therefore, this has resulted in a fragmented approach to implementation. The study suggests that trade union representatives and employers should be well trained, particularly on issues relating to dismissal for incapacity in general. From a global perspective, international organisations through ratifying Conventions have also heeded to the plight of disabled persons. This is proof that disability can no longer be confined to the borders of one nation. Many disability organisations have emerged over the years and are representing the interests of the disabled. The findings of this study may help companies, organisations and institutions improve their policy practices regarding the dismissal of employees associated with ill health or injury.
- Full Text:
- Date Issued: 2019
Equal pay for work of equal value
- Authors: Leo, Aloshea Doreen
- Date: 2019
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019
- Authors: Leo, Aloshea Doreen
- Date: 2019
- Subjects: Equal pay for equal work -- Law and Legislation -- South Africa , Pay equity -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40445 , vital:36166
- Description: Since the end of the Apartheid Regime, various labour legislation has been enacted over the years to eliminate discrimination and grant everyone in South Africa the right to fair labour practices, including the prohibition of unfair payment practices in terms of item 2(1)(a) of Schedule 7 of the Labour Relations Act.1 The above item was repealed and replaced with an express provision strictly prohibiting unfair discrimination in any employment practice or policy.2 However, even though this express provision strictly prohibited unfair discrimination in employment, the International Labour Organisation criticised South Africa for the failure to include an express provision dealing specifically with equal remuneration in terms of the Employment Equity Act.3 Because of this criticism, sections 6(4) and (5)4 were introduced. Section 6(4) amendments were obviously not been successful as intended, as numerous employees still are facing unfair discrimination based on the wages. Looking at Case law in the United Kingdom, there are clearly principles and successes that South Africa can learn from and incorporate in South African labour law. Some successes include the proactivity of employers who identify groups of employees, which are performing work that is of equal value, comparing their salaries, and by investigating and removing pay gap causes. Another success is the use of reports of independent experts who can assess the value of different occupations. If South Africa does this, it will alleviate the pressure placed upon courts that do not have the necessary expertise to decide on the value.
- Full Text:
- Date Issued: 2019
Intercountry adoption and alternative care in South Africa: a model for determining placement in the best interests of the child
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
Justifications and limitations of affirmative action
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
Legal position of TES employees
- Authors: Sidloyi, Sicelo
- Date: 2019
- Subjects: Temporary employment -- Law and legislation -- South Africa , Temporary help services -- Law and legislation -- South Africa Employees -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43478 , vital:36896
- Description: This paper focuses on the legal position of employees of a Temporary Employment Services (hereinafter referred to as “TES”), also referred to as a labour broker defined as a person or entity that provides workers to others, (their clients) to perform duties for the benefit of the client for compensation. This tripartite relationship is established by an employment contract between the employee and the TES (this forms the basis of the employment relationship) and a commercial contract between the TES and the client. This relationship is regulated by S198 of the Labour Relations Act1 (hereinafter referred to as “LRA”). This section provides protection to employees of a labour broker, where before it, such protection did not exist. This section along with its subsections will be discussed in length in this paper and this section will be criticized and its shortcomings will be highlighted. Due to S198’s shortcomings, The South African Government introduced proposed amendments to the LRA (hereinafter referred to as “LRAA”).2 These proposed amendments and the effect thereof on TES are studied to determine whether it will better the current issues experienced with TES. The amendments provide difficulty in its interpretation, particularly S198A (3) (b), also referred to as the deeming provision. This paper will study the amendments and its subsections. S198A(3)(b) is problematic in its interpretation because due to the manner in which it is drafted, strong arguments can be made for either a sole employment interpretation or a dual employer interpretation. The main focus of the paper will be to study provisions of S198 (A) (3) (b) and look at who the employer is, of employees in a TES relationship, between the TES and the client. This question will also ultimately indicate what the legal position is of employees in TES relationship. This paper will also look at how courts have interpreted the deeming provision and their findings will be highlighted and criticised.
- Full Text:
- Date Issued: 2019
- Authors: Sidloyi, Sicelo
- Date: 2019
- Subjects: Temporary employment -- Law and legislation -- South Africa , Temporary help services -- Law and legislation -- South Africa Employees -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43478 , vital:36896
- Description: This paper focuses on the legal position of employees of a Temporary Employment Services (hereinafter referred to as “TES”), also referred to as a labour broker defined as a person or entity that provides workers to others, (their clients) to perform duties for the benefit of the client for compensation. This tripartite relationship is established by an employment contract between the employee and the TES (this forms the basis of the employment relationship) and a commercial contract between the TES and the client. This relationship is regulated by S198 of the Labour Relations Act1 (hereinafter referred to as “LRA”). This section provides protection to employees of a labour broker, where before it, such protection did not exist. This section along with its subsections will be discussed in length in this paper and this section will be criticized and its shortcomings will be highlighted. Due to S198’s shortcomings, The South African Government introduced proposed amendments to the LRA (hereinafter referred to as “LRAA”).2 These proposed amendments and the effect thereof on TES are studied to determine whether it will better the current issues experienced with TES. The amendments provide difficulty in its interpretation, particularly S198A (3) (b), also referred to as the deeming provision. This paper will study the amendments and its subsections. S198A(3)(b) is problematic in its interpretation because due to the manner in which it is drafted, strong arguments can be made for either a sole employment interpretation or a dual employer interpretation. The main focus of the paper will be to study provisions of S198 (A) (3) (b) and look at who the employer is, of employees in a TES relationship, between the TES and the client. This question will also ultimately indicate what the legal position is of employees in TES relationship. This paper will also look at how courts have interpreted the deeming provision and their findings will be highlighted and criticised.
- Full Text:
- Date Issued: 2019
Legal remedies against corruption: lessons from Guatemala
- Cordell, Cameron George Thomas
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
- Authors: Cordell, Cameron George Thomas
- Date: 2019
- Subjects: Remedies (Law) -- Guatemala , Remedies (Law) -- South Africa Criminal law -- Guatemala Criminal law -- South Africa Public law -- South Africa Public law -- Guatemala
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/38013 , vital:34281
- Description: Corruption is a crime which has affected all levels of government in South Africa. Despite the multi-agency system developed since the advent of democracy, levels of corruption are still on the rise, with greater levels of impunity. It is clear that reform is needed within South Africa’s anti-corruption framework. The state of Guatemala has meanwhile achieved results that have been described as transcendental in the fight against corruption, via a novel anti-corruption commission formed in collaboration with the United Nations, known as the Commission against Impunity in Guatemala (CICIG). This dissertation begins with an examination of the content of the crime of corruption via a historical approach – charting the course of corruption and effort to curb it from Ancient Greece, Mesoamerica and Africa, through the various legal systems that have resulted in the modern-day legal frameworks of South Africa and Guatemala. In doing so, a working definition of corruption has been developed – namely the unlawful and unethical enrichment of the self at the expense of the state. This definition aids in clearly defining proven instances of corruption within the public sector in modern South Africa. While corruption as a crime is generally clandestine in nature and difficult to deal with quantitatively, it is clearly demonstrated from the instances of corruption that have been proven that the offence is dealt with ineffectually by the existing policy and legal framework. Examinations of corruption scandals such as the capture of the state by private family corporations, to the collapse of South Africa’s Social Security Agency (SASSA), show that even when proven, corrupt politicians rarely face consequences for their actions. This is due to the lack of clarity in the primary legislation dealing with corruption – the Prevention and Combatting of Corrupt Activity Act (PRECCA), combined with a multi-agency approach wherein the various bodies tasked with combatting corruption are not working cohesively. The solution to this problem is a single commission to integrate the anti-corruption framework, as well as providing a fresh perspective about how to deal with the crime. The CICIG has served this role in Guatemala, resulting in successful investigations and prosecutions of former Presidents, judges and members of the legislature. It has achieved this by supporting and working with the existing anti-corruption bodies, as well as advising government on effective policy reform. It is further staffed by anti-corruption experts who are from the Central and South American region, providing a level of trust and regional knowledge. There is no bar in South African law for the creation of a similar international body. Such a move is necessary to provide a fresh outlook on the fight against corruption in South Africa. An international body, staffed by African anti-corruption experts, would be an effective means to work with the multi-agency system currently in place to aid it in working cohesively, but also to provide African solutions to the scourge of corruption through policy reform.
- Full Text:
- Date Issued: 2019
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
Shortcomimgs of the criminal law (sexual offences and related matters) amendment act
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
- Authors: Marais, Charl Johan
- Date: 2019
- Subjects: South Africa Criminal Law (Sexual Offences) Amendment Act, 2007 , Sex crimes -- Law and legislation -- South Africa Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40955 , vital:36277
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act,1 hereinafter referred to as SORMA, came into operation on 16 December 2007 and acknowledges in its preamble, the then current, inadequate and discriminatory measures provided for in common law and statute relating to sexual offences. Although it aimed to address these measures, through the repeal of various common law sexual offences and the introduction, or amendment, of comprehensive statutory offences relating to sexual offences against children and vulnerable individuals, the legislature failed to take advantage of a golden opportunity; being the introduction of inquisitorial elements in the South African sexual offences legal framework.2 Through the introduction of SORMA, provisions relating to sexual offences against children were introduced, unfortunately it included sexual offences amongst children as well.3 However, this was declared unconstitutional in The Teddy Bear Clinic for Abused Children and Rapcan v Minister of Justice and Constitutional Development,4 and Parliament was allowed 18 months to rectify the defect in the enactment. Although, Parliament failed to abide by the time period provided by the Constitutional Court, a larger disappointment was on the horizon; the realisation that the applicants’ constitutional challenge was too narrow. This, together with the lack of foresight on the part of the legislature, lead to SORMA, even in its amended form, being mainly accusatorial in nature. Furthermore, and despite the amendments, SORMA failed to completely decriminalise consensual sexual activity between children. Despite its shortcomings, SORMA could be said to provide adequate provisions relating to all possible sexual offences against children and vulnerable individuals. However, the shortcomings are not restricted to the provisions of the enactment, the shortcomings relate to the application thereof. Should inquisitorial elements be introduced, the focus of the trial would shift away from the victim and shift on to the accused, thereby extending the protection offered to children and vulnerable individuals to the maximum extent.
- Full Text:
- Date Issued: 2019
The application of the law of evidence in disciplinary proceedings and proceedings before the CCMA and bargaining councils
- Jacobs, Clint Eveleigh, Thesis Advisor
- Authors: Jacobs, Clint Eveleigh , Thesis Advisor
- Date: 2019
- Subjects: Evidence (Law) -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40095 , vital:35754
- Description: Humanity has since time immemorial tried to arrange and structure its societies and communities. It follows that most, if not all societies’ function within a body of rules. Governments put laws in place to ensure that order is maintained and they are developed over time and implemented as the needs of a particular society evolve. Law may be divided into substantive law and procedural law. The law of evidence forms an integral part of procedural law and consists of a compilation of legal rules that have been used by courts and other forums in order to ensure that consistent and fair processes are followed and standards maintained in courts when facts are to be determined.2 It sets out the framework for how the evidence of witnesses must be dealt with and also sets out how it should be interpreted. Furthermore, it prescribes the assessment and evaluation of evidentiary material. It is imperative that rules of evidence be in place in order to protect the integrity of the proceedings and to prevent unfairness. The law of evidence thus forms an integral part of the law of procedure. Although South African common law is Roman-Dutch Law, the South African law of evidence has originally been incorporated into South African law from English law and has been developed over the years through legislation and court judgments.3 The law of evidence is applicable to both civil and criminal proceedings. In fact, rules of evidence come into play in virtually all courts, tribunals and forums where the objective is to resolve some or other legal dispute. This treatise focuses on aspects relating to the rules of evidence, with specific reference to hearsay evidence, unconstitutionally obtained evidence, polygraph testing by employers, searches and seizures in the workplace and entrapment in the workplace.
- Full Text:
- Date Issued: 2019
- Authors: Jacobs, Clint Eveleigh , Thesis Advisor
- Date: 2019
- Subjects: Evidence (Law) -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration Mediation and conciliation, Industrial -- South Africa Labor laws and legislation -- South Africa Collective bargaining -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/40095 , vital:35754
- Description: Humanity has since time immemorial tried to arrange and structure its societies and communities. It follows that most, if not all societies’ function within a body of rules. Governments put laws in place to ensure that order is maintained and they are developed over time and implemented as the needs of a particular society evolve. Law may be divided into substantive law and procedural law. The law of evidence forms an integral part of procedural law and consists of a compilation of legal rules that have been used by courts and other forums in order to ensure that consistent and fair processes are followed and standards maintained in courts when facts are to be determined.2 It sets out the framework for how the evidence of witnesses must be dealt with and also sets out how it should be interpreted. Furthermore, it prescribes the assessment and evaluation of evidentiary material. It is imperative that rules of evidence be in place in order to protect the integrity of the proceedings and to prevent unfairness. The law of evidence thus forms an integral part of the law of procedure. Although South African common law is Roman-Dutch Law, the South African law of evidence has originally been incorporated into South African law from English law and has been developed over the years through legislation and court judgments.3 The law of evidence is applicable to both civil and criminal proceedings. In fact, rules of evidence come into play in virtually all courts, tribunals and forums where the objective is to resolve some or other legal dispute. This treatise focuses on aspects relating to the rules of evidence, with specific reference to hearsay evidence, unconstitutionally obtained evidence, polygraph testing by employers, searches and seizures in the workplace and entrapment in the workplace.
- Full Text:
- Date Issued: 2019
The enforceability of by-laws of district municipalities on local municipalities with specific reference to solid waste disposal
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
- Authors: De Villiers, Nico Francois
- Date: 2019
- Subjects: South Africa -- Local Government: Municipal Systems Act, 2000 , Local government -- Law and legislation -- South Africa Refuse and refuse disposal -- Law and legislation -- South Africa Refuse and refuse disposal
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42118 , vital:36627
- Description: A consequence of the regionalisation of waste disposal services is that waste management services are no longer the primary responsibility of local municipalities but shared between local and district municipalities. The process of regionalising solid waste disposal and the regulation thereof presents unchartered territory in South Africa and raises several questions including whether, in regulating regional waste disposal services, a district municipality may do so through adopting by-laws and if so, whether these by-laws are enforceable on the local municipalities who benefit from the waste disposal service. The study confirmed the importance of cooperative governance and public participation in all decision making processes including the enactment of legislation. The absence of constitutional and legislative guidance on implementation processes for regionalisation and the overlapping nature of the functions and powers of the effected local and district municipalities are identified as challenges to the regionalisation process. The study concluded that district municipal by-laws may regulate the regional waste disposal function. These adopted by-laws, although not without boundaries, will be enforceable on local municipalities provided that the principles of cooperative governance and public participation were adhered to.
- Full Text:
- Date Issued: 2019
The impact of declining trade union membership on collective bargaining
- Authors: Nombembe, Vuyani
- Date: 2019
- Subjects: Labor unions -- South Africa , Collective bargaining -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42814 , vital:36694
- Description: Trade unions play an important role in the South African labour relations. Power relations in the workplace favour the employers in terms of decision-making due to the resources that employers have at their disposal, as compared to single employees. In order for employees to be at par with employers during collective bargaining, they join or form trade unions. In South Africa for example, the apartheid government was against trade unions as they were viewed as a threat to the hegemony of the apartheid regime. The democratic dispensation that was ushered in, 1994, sought to change that through a tripartite arrangement between employees, employers and the government. This was done to ensure that trade unions become part of the decision making process on workplace related matters. The South African Constitution of 1996 states that every employee has the right to form and join a trade union and participate in the activities and programmes of a trade union. Trade unions are also able to influence policy related decisions as they participate in decision-making bodies like the National Economic Development and Labour Council (NEDLAC) and the International Labour Organisation (ILO). Government has enacted legislation that gives effect to the rights that are enshrined in the Constitution. Through protection afforded by legislation, trade unions are able to recruit members in different sectors and with sufficient sector representation are able to form sector specific Bargaining Councils with Employers’ Organisations representing such sectors, that are able to negotiate terms and conditions of employment for employees in that sector. This study considers and evaluates the rights conferred to trade unions by the Constitution and legislation. The study focuses on the impact of dwindling trade union membership numbers on collective bargaining in South Africa and makes a brief comparison with the European Union (EU). It examines the history of trade unions and the causes of the reduction of trade union membership numbers in South Africa and the EU. Case law is considered in order to gain an understanding of the changing collective bargaining landscape in South Africa. Consideration is given to some of the challenges faced by trade unions in seeking new members and this study makes recommendations of measures that could be put in place to assist trade unions increase their presence in the workplace.
- Full Text:
- Date Issued: 2019
- Authors: Nombembe, Vuyani
- Date: 2019
- Subjects: Labor unions -- South Africa , Collective bargaining -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42814 , vital:36694
- Description: Trade unions play an important role in the South African labour relations. Power relations in the workplace favour the employers in terms of decision-making due to the resources that employers have at their disposal, as compared to single employees. In order for employees to be at par with employers during collective bargaining, they join or form trade unions. In South Africa for example, the apartheid government was against trade unions as they were viewed as a threat to the hegemony of the apartheid regime. The democratic dispensation that was ushered in, 1994, sought to change that through a tripartite arrangement between employees, employers and the government. This was done to ensure that trade unions become part of the decision making process on workplace related matters. The South African Constitution of 1996 states that every employee has the right to form and join a trade union and participate in the activities and programmes of a trade union. Trade unions are also able to influence policy related decisions as they participate in decision-making bodies like the National Economic Development and Labour Council (NEDLAC) and the International Labour Organisation (ILO). Government has enacted legislation that gives effect to the rights that are enshrined in the Constitution. Through protection afforded by legislation, trade unions are able to recruit members in different sectors and with sufficient sector representation are able to form sector specific Bargaining Councils with Employers’ Organisations representing such sectors, that are able to negotiate terms and conditions of employment for employees in that sector. This study considers and evaluates the rights conferred to trade unions by the Constitution and legislation. The study focuses on the impact of dwindling trade union membership numbers on collective bargaining in South Africa and makes a brief comparison with the European Union (EU). It examines the history of trade unions and the causes of the reduction of trade union membership numbers in South Africa and the EU. Case law is considered in order to gain an understanding of the changing collective bargaining landscape in South Africa. Consideration is given to some of the challenges faced by trade unions in seeking new members and this study makes recommendations of measures that could be put in place to assist trade unions increase their presence in the workplace.
- Full Text:
- Date Issued: 2019
The interests of justice in bail proceedings
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019
- Authors: Ntontela, Mahlubandile
- Date: 2019
- Subjects: Criminal procedure -- South Africa , Bail Preventive detention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/42683 , vital:36680
- Description: Bail in the South African context is a very contentious issue. Over the years, courts have had to develop principles for the purposes of granting or refusing bail. The interim Constitution of 1994 placed an onus on the State to adduce evidence that interests of justice justified the accused’s incarceration pending trial. After the escalation of crime in the 1990’s and the subsequent public outcry, the Legislature introduced guiding principles as to what would constitute interests of justice in bail proceedings. These principles did not differ much from what the courts had developed over the years leading to the constitutional dispensation. The inquisitorial nature of the bail proceedings was further entrenched by the amendments as they tasked the courts to determine what would be in the interests of justice in every bail enquiry. The legislative amendments further introduced what was termed the reverse onus provisions which were heavily criticised at the time of their introduction. These provisions placed an onus on the accused to adduce evidence to satisfy the courts that the interests of justice were in favour of their release in serious offences, and further adduce exceptional circumstances in respect of very serious offences. It is argued in this research that, despite the development and the codification of the interests of justice concept over the years, the duty of the courts to uphold the constitutional values should not be neglected by the courts when determining what would be in the interests of justice in bail proceedings. The standard by which the courts are to uphold the concept of interests of justice in bail proceedings should reflect the task that has been placed on the courts and not on the parties to the proceedings, when reaching a just and equitable decision in bail proceedings.
- Full Text:
- Date Issued: 2019
The legal consequences of unprotected strikes
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
- Authors: Van Blerk, Caro
- Date: 2019
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Strikes and lockouts -- South Africa Strikes and lockouts Labor laws and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43688 , vital:37030
- Description: The purpose of a strike is to ensure that the employer‘s business remains at a standstill until the demands of workers are met1.Workers have tried to increase the effect that strikes would have on the employer, as to obtaining their demands, through resorting to violence, violating property of employer and other people. Our collective bargaining system could be seen as contributing to low wages, and thelack of a balloting requirement. The Labour Relations Act (LRA)2 gives effect to the right to strikes and the circumstances under which it might lose its protected status3. There are certain requirements that need to be met to ensure strikes are protected and once they are not adhered to, there are detrimental consequences. This leads to the high levels of violent unprotected strike action in the country, which has a negative impact on our social and economic abilities as a country. This study investigates the different areas, and analyses all factors associated with unprotected strikes.
- Full Text:
- Date Issued: 2019
The legalisation of prostitution in South Africa
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019
- Authors: Vaveki, Vuyani Patrick
- Date: 2019
- Subjects: Prostitution|xLaw and legislation , Sex and law -- South Africa Prostitution -- South Africa Women -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43698 , vital:37034
- Description: Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected.
- Full Text:
- Date Issued: 2019