Academic literature on the topic 'Labor contract – South Africa – Evaluation'

Research on the specifics of the legal regulation of certain categories of employees is conducted by leading foreign research centers and international organizations. In particular, the work of women, children, disabled people, homeworkers, seasonal workers and migrants is one of the most active research topics within the UN, ILO, OSCE, and CIS. For example, the topics are “Labor Market Trends and Outlook”, “Labor, Income and Equity”, “Changing World of Work”, “Macroeconomic Policies and Jobs”, “Globalization and Labor Market”, “Policy evaluation”, “Youth and Gender Issues” (Special issues of youth and gender are also covered) are recognized as one of the main topics studied by the ILO Research Department in The direction of labor market trends and prospects. The following results were obtained in scientific studies conducted in the field of determining the features of legal regulation of labor of certain categories of workers in foreign countries: proposals were developed and implemented to ensure gender equality in labor relations (University of Sterling, Scotland), eliminate discrimination by introducing rules of differentiation (Rand Afrikaans University, South Africa), and provide additional opportunities in the field of labor for women and persons employed in family responsibilities (University of Essex, UK), increasing the role of contracts in regulating the work of home workers (Middlesex University, UK), providing equal rights in the use of migrant labor (University of Oxford, UK).

AbstractThis article examines the history of precarious labor within the retail sector in South Africa since the early decades of the twentieth century. It argues that a “regime of contract” characterized through a bifurcated legal apparatus for black and white workers and skill segmentation naturalized by race and gender can be used to track the continuities as well as explain the changes within forms of precarious labor in the present. The history of struggle for regulation as well as employer efforts to refragment the employment contract have been a key part of this story. This article suggests that “regimes of contract” can be used to develop comparative and transnational study to explain precarious labor regimes globally.

The development of transnational corporations (TNC) raises the question of an effective system of organization management, in particular, in countries - members of the BRICS. The results of the study showed the use of a collective labor contract in organizations in India, China, South Africa is not widespread. Regulation of social and labor relations is limited to national features, mentality, traditions. For example, in China workers, due to the prevailing attitude and philosophy, do not seek to use a collective labor contract to regulate the relations with the employer. Based on a number of reasons shown in the article, the authors consider that most probably no major changes related to the regulation of labor relations in these countries will occur in the near future.

In this paper, we explore the increasing activity around labor rights for South African community health workers (CHWs). Contextualizing this activity within broader policy and legal developments, we track the emergence of sporadic mobilizations for decent work (supported by local health activist organizations) and subsequently, the formation of a CHW union. The National Union of Care Workers of South Africa (NUCWOSA) was inaugurated in 2016, hoping to secure formal and secure employment through government and the consequent labor and occupational health protections. Various tensions were observed during fieldwork in the run up to NUCWOSA's formation and raise important questions about representation, legitimacy, and hierarchies of power. We close by offering suggestions for future research in this developing space.

AbstractIn May 1903, 380 Africans were recruited from British Central Africa (modern Malawi) by the Witwatersrand Native Labour Association on one-year contracts to work in the gold mines. It was an experiment designed to test the potential for recruiting cheap black labor for the mines from the region north of the Zambesi. By the end of the contract period, more than a quarter of the men were either dead or permanently disabled. Their struggles to adapt to the harsh working conditions in the mines fueled a racist discourse among white South Africans about “Tropical Africans,” which focused on their supposed susceptibility to disease on the one hand, and their supposed “natural indolence” on the other. Notwithstanding these issues, the mine owners considered the experiment a success and moved rapidly to expand recruitment from the region in the years that followed. This article tells the story of this pioneering group of migrant workers, detailing their grim encounter with modernity and the power of capital in South Africa. It also suggests ways in which their experiences helped to determine the conditions of employment for the generations of migrant mineworkers that followed them.

E-voting is one of the valid use cases of blockchain technology with many blockchain e-voting systems already proposed. But efforts that focus on critical analysis of blockchain e-voting architectures for national elections from stakeholders’ perspectives are mostly lacking in the literature. Therefore, government decision-makers and election stakeholders do not yet have a sufficient basis to understand the potential risks, challenges, and prospects that are associated with blockchain e-voting. This paper demonstrates how the use of the Architecture Trade-off Analysis Method (ATAM) can enable stakeholders in national elections to understand the risks, prospects, and challenges that could be associated with a blockchain e-voting system for national elections. By using a study context of South Africa, a proposed blockchain e-voting architecture was used as a basis to aid election stakeholders to reason on the concept of blockchain e-voting to get them to understand the potential risks, security threats, critical requirements attributes, and weaknesses that could be associated with using blockchain e-voting for national elections. The study found that blockchain e-voting can prevent many security attacks, internal vote manipulation, and promote transparency. However, voter validation and the security of the blockchain architecture are potential weaknesses that will need significant attention.

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.

IntroductionHealth systems across the world are facing challenges with shortages and maldistribution of skilled health professionals. Return-of-service (ROS) initiatives are government-funded strategies used to educate health professionals by contracting beneficiaries to undertake government work on a year-for-year basis after their qualification. It is envisaged that once they have served their contract, they will be attracted to serve in the same area or government establishment beyond the duration of their obligatory period. Little is known about the processes that led to the development and implementation of ROS policies. Furthermore, there is no systematic evaluation of the strategies that demonstrate their utility. This research aims to evaluate the ROS initiatives, explore their efficacy and sustainability in five Southern African countries.Methods and analysisThis study will be conducted in South Africa, Eswatini, Lesotho, Botswana and Namibia in a phased approach through a multimethods approach of policy reviews, quantitative and qualitative research. First, a review will be conducted to explore current ROS schemes. Second, a quantitative retrospective cohort study of ROS scheme recipients for the period 2000–2010 will be undertaken. Information will be sourced from multiple provincial or national information systems and/or databases. Third, we will conduct semistructured group or individual interviews with senior health, education, ROS managing agency managers (where appropriate) and finance managers and/policy makers in each country to determine managers’ perceptions, challenges and the costs and benefits of these schemes. Fourth, we will interview or conduct group discussions with health professional regulatory bodies to assess their willingness to collaborate with ROS initiative funders.Ethics and disseminationEthics approval for this study was obtained through the Human Research Ethics Committees of the University of New South Wales (HC200519), Australia; South Africa and Lesotho (065/2020); Eswatini (SHR302/2020); Namibia (SK001); and Botswana (HPDME 13/18/1). Relevant findings will be shared through presentations to participating governments, publications in peer-reviewed journals and presentations at relevant conferences.

The study of current practices in the legal regulation of social and labour relations in the BRICS countries indicates the need to ensure equal treatment of migrant workers with national workers. Discriminatory barriers to migrant workers accessing social security systems contained in the legislation of receiving countries (the legal status of the migrant, duration of stay and other). The legislation of the country of origin of migrant workers also excludes them from the social security systems. Foreign nationals, residing temporarily in Russia, are subject to compulsory pension insurance. The payment of insurance contributions allows establishing a certain amount of pension rights. However, they often do not acquire the right to insurance, since the insurance pension is granted only to foreign nationals permanently resident in Russia. Basic old-age insurance, basic medical insurance, work injury insurance, unemployment insurance, and maternity insurance extend to foreigners legally working in China. In Brazil, foreign workers are insured under the General Social Security Regime. However, it establishes progressive premium rates. In India, international employees are required to be registered as members of the Employees’ Provident Fund and to contribute to it. Foreign nationals, who have entered South Africa to work under a contract of employment and who have been forced to leave the Republic, are not covered by the social security. It is therefore essential to design and implement policies that will strengthen the sustainability of the social security system and eliminate discriminatory norms between labor migrants and national workers.

Objective To investigate the outcomes of critically ill obstetric patients managed in a obstetric critical care unit in South Africa. Methods Patients with severe maternal morbidity managed in the labor ward of Tygerberg Hospital were studied over three months before the establishment of the obstetrician-led obstetric critical care unit. One year later, patients managed in the obstetric critical care unit were studied using the same methods. The primary outcome measures were maternal morbidity and mortality. Results In the before-obstetric critical care unit prospective audit 63 patients met criteria for obstetric critical care. During the second period 60 patients were admitted to the obstetric critical care unit. There were no significant differences between the groups in baseline characteristics, admission indications or Acute Physiology and Chronic Health Evaluation scores. Continuous positive airway pressure ( p < 0.01) was utilized more in the second group. Seven deaths occurred in the first, but none in the second group ( p = 0.01). Conclusion The establishment of an obstetrician-led obstetric critical care unit facilitated a decrease in maternal mortality. Trial registration: Not applicable.

The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.

In terms of the common law contract of employment an employee who is a party to a fixed term contract, unlike an indefinite period contract, cannot be dismissed. The contract terminates upon an agreed or ascertainable date determined by the parties and the conclusion of the contract. Section 186(1)(b) of the Labour Relations Act 1995, however, defines the failure to renew a fixed term contract on the same or similar terms where the employee reasonably expected the contract to be renewed, as a dismissal. In this treatise the scope and content of this provision is considered with reference to relevant case law. The factors and considerations that establish a reasonable expectation are highlighted and considered. The question as to whether or not this provision also provides for the situation where an employee expects indefinite employment is also considered and critically discussed. The author concludes that the provision should not be interpreted in such a manner that an expectation of permanent employment is created.

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances

Clauses in restraint of trade agreements concluded between an employer and an employee often present difficult legal issues to deal with. This complexity is due to the fact that a court, in deciding whether to enforce a restraint provision, has to strike a balance between two equal but competing policy considerations, namely, the sanctity of the contract and the freedom of movement of people in a market economy. In striving to balance the sanctity of contract with the right of freedom to trade, it is necessary to decide which of these two policy considerations should take precedence by having regard to the public interest served by them in the particular circumstances. In the watershed case of Magna Alloys and Research(SA)(Pty) Ltd v Ellis, the Appellate Division decided the sanctity of contract had greater precedent in South African law and that undertakings in restraint of trade were prima facie valid and enforceable, unless the party seeking to avoid its obligations could show that the restraint of trade was contrary to public interest. The second consideration, namely that a person should be free to engage in useful economic activity and to contribute to the welfare of society, tempers the sanctity of contract considerations. Accordingly, the courts have struck down any unreasonable restriction on the freedom to trade where it was regarded as contrary to public interest. In considering the reasonableness and therefore the acceptability of restraint of trade provisions from a public policy perspective, the following five questions need consideration: Is there a legitimate interest of the employer that deserves protection at the termination of the employment agreement? If so, is that legitimate interest being prejudiced by the employee? If the legitimate interest is being prejudiced, does the interest of the employer weigh up, both qualitatively and quantitatively against the interest of the employee not to be economically inactive and unproductive? Is there another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be enforced or rejected? Is the ambit of the restraint of trade in respect of nature, area and duration justifiably necessary to protect the interests of the employer? In enforcing a restraint, the court will consider all the facts of the matter as at the time that the party is seeking to enforce the restraint. If a court finds that the right of the party to be economically active and productive surpasses the interest of the party attempting to enforce the restraint, the court will hold that such restraint is unreasonable and unenforceable. Consideration of the enforceability of restraints is often found to be challenging in view of the answers to the above stated five questions often remaining of a factual nature and subjective, i.e. the view and perceptions of the presiding officer play an important role. A further complexity is the limited early effect which the Constitution of the Republic of South Africa had on dispute resolution pertaining to restraints of trade in the employment context and the prospects of imminent changes to the pre-Constitutional era locus classicus of Magna Alloys and Research (SA)(Pty) Ltd v Ellis.

The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.

Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.

This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).

The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.

Thesis (LLD)--Stellenbosch University, 2014.
ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts.
AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek die benadering tot die kontraktuele remedie van spesifieke nakoming in die Suid-Afrikaanse reg. Die diskresionêre bevoegdheid van howe om spesifieke nakoming te weier word van nader en krities aanskou. Die fokus is op die oorwegings wat ‘n rol speel by die uitoefening van die diskresie. Eerstens beklemtoon die tesis die spanning tussen die reg en die regterlike diskresie. Daar word aangevoer dat dit problematies is dat ons howe ‘n eis om spesifieke nakoming kan weier in die uitoefening van hul diskresie. Die onderliggende probleem is dat die hof se diskresie om spesifieke nakoming te weier, fundamenteel in stryd is met die sogenaamde reg van die eiser om spesifieke nakoming te eis. Die tesis ondersoek die houbaarheid van hierdie onbelemmerde diskresionêre benadering tot die beskikbaarheid van spesifieke nakoming as ‘n remedie vir kontrakbreuk. Vervolgens ondersoek die tesis die vereenvoudigde benaderings ten opsigte van spesifieke nakoming beliggaam in verskillende internasionale instrumente. Vergelyking tussen verskillende regstelsels word ook gebruik om spesifieke probleme in die Suid- Afrikaanse benadering uit te lig, en om vas te stel of daar ‘n beter oplossing van elders geleen kan word. ‘n Ondersoek van die aanwesigheid van hierdie remedie in ander regstelsels en internasionale instrumente onthul dat die Suid-Afrikaanse benadering onsamehangend en onnodig ingewikkeld is. Om hierdie punt te illustreer, ondersoek die tesis vier gronde waarop die remedie tipies geweier word. In die eerste twee gevalle, naamlik, wanneer skadevergoeding genoegsame regshulp sal verleen en wanneer dit vir die hof moeilik sal wees om toesig te hou oor die uitvoering van die bevel, sien ons dat die howe geleidelik minder of selfs geen gewig aan hierdie faktore heg wanneer hulle besluit of spesifieke nakoming toegestaan moet word nie. In die derde geval, naamlik, dienskontrakte, sien ons dat die howe bereid is om in sekere gevalle spesifieke nakoming toe te staan, maar egter nie spesifieke nakoming ten opsigte van hoogs persoonlike verpligtinge gelas nie, wat verstaanbaar is tot die mate wat ons reg dwangarbeid en swak prestasies wil vermy. Die analise van die vierde grond, naamlik, buitensporige benadeling, toon dat die howe voortgaan om die belange van die verweerder en derde partye in ag te neem wanneer hulle besluit om spesifieke nakoming te beveel. Die studie het bevind dat daar sekere omstandighede is waarin die howe nooit spesifieke nakoming toestaan nie en die diskresie eintlik afwesig is. Derhalwe word dit aangevoer dat die geldende reg wat betref spesifieke nakoming weerlê kan word indien hierdie werklikheid nie in die substantiewe reg weerspieël word nie. Gegewe die vooruitsig, word moontlike oplossings ondersoek, en ‘n argument word gemaak ten gunste van ‘n eenvoudiger konkrete benadering wat meer duidelik gedefinieerde reëls erken met betrekking tot wanneer spesifieke nakoming geweier moet word ten einde regsekerheid en eenvormigheid te bevorder. Die gevolgtrekking is dat ‘n beperkte aanspraak op spesifieke nakoming meer wenslik is as ‘n reg op spesifieke nakoming wat onderhewig is aan die hof se oorheersende diskresie om dit te weier, en dat ‘n uitsondering-gebaseerde benadering as ‘n basis kan dien vir die vereenvoudiging van ons reg rakende spesifieke nakoming.

The democratic dispensation elevated teacher trade unionism to unparalleled and unprecedented levels in the South African education system. The education laws of South Africa recognize teacher unions which meet the South African labor-related requirements. The three powerful teacher unions that recognize and represent thousands of teachers are the South African Democratic Teachers Union (SADTU), the National Professional Teachers' Organisation of South Africa (NAPTOSA), and the Suid Afrikaanse Onderwysersunie (SAOU). These recognized teacher unions represent their members in decision making processes and not teachers who are non-union members. This chapter is based on an in-depth evaluation of extant literature, and further, it is interpretive in approach and employs social justice as the theoretical and conceptual framework.

The democratic dispensation elevated teacher trade unionism to unparalleled and unprecedented levels in the South African education system. The education laws of South Africa recognize teacher unions which meet the South African labor-related requirements. The three powerful teacher unions that recognize and represent thousands of teachers are the South African Democratic Teachers Union (SADTU), the National Professional Teachers' Organisation of South Africa (NAPTOSA), and the Suid Afrikaanse Onderwysersunie (SAOU). These recognized teacher unions represent their members in decision making processes and not teachers who are non-union members. This chapter is based on an in-depth evaluation of extant literature, and further, it is interpretive in approach and employs social justice as the theoretical and conceptual framework.

Gender equality and information and communication technology are important in the achievement of the Millennium Development Goals (MDGs) in policy, planning, and practice. The 2000 Millennium Declaration of the United Nations (UN) formed an international agreement among member states to work toward the reduction of poverty and its effects by 2015 through eight Millennium Development Goals: 1. Eradicate extreme poverty and hunger 2. Achieve universal primary education 3. Promote gender equality and the empowerment of women 4. Reduce child and maternal mortality 5. Improve maternal health care 6. Combat HIV and AIDS, malaria, and other major diseases 7. Ensure environmental sustainability 8. Develop global partnership for development Progress toward gender equality and the empowerment of women is one goal that is important to achieving the others. Poverty, hunger, illiteracy, environmental threats, HIV and AIDS, and other health threats disproportionately affect the lives of women and their dependent children. Gender-sensitive ICT applications to education, health care, and local economies have helped communities progress toward the MDGs. ICT applications facilitate rural health-care workers’ access to medical expertise through phones and the Internet. Teachers expand learning resources through the Internet and satellite services, providing a greater knowledge base for learners. Small entrepreneurs with ICT access and training move their local business into world markets. ICT diffusion into world communication systems has been pervasive. Even some of the poorest economies in Africa show the fastest cell-phone growth, though Internet access and landline numbers are still low (International Telecommunications Union [ITU], 2003b). ICT access or a lack of it impacts participation, voice, and decision making in local, regional, and international communities. ICTs impact the systems that move or inhibit MDG progress. UN secretary general Kofi Annan explained the role of the MDGs in global affairs: Millennium Development Goals are too important to fail. For the international political system, they are the fulcrum on which development policy is based. For the billion-plus people living in extreme poverty, they represent the means to a productive life. For everyone on Earth, they are a linchpin to the quest for a more secure and peaceful world. (UN, 2005, p. 28) Annan also stressed the critical need for partnerships to facilitate technology training to enable information exchange and analysis (UN, 2005). ICT facilitates sharing lessons of success and failure, and progress evaluation of work in all the MDG target areas. Targets and indicators measuring progress were selected for all the MDGs. Gender equality and women’s empowerment are critical to the achievement of each other goal. Inadequate access to the basic human needs of clean water, food, education, health services, and environmental sustainability and the support of global partnership impacts great numbers of women. Therefore, the targets and indicators for Goal 3 address females in education, employment, and political participation. Progress toward the Goal 3 target to eliminate gender disparity in primary and secondary education, preferably by 2005, and in all levels of education no later than 2015, will be measured by the following indicators. • Ratio of girls to boys in primary, secondary, and tertiary education • Ratio of literate females to males who are 15- to 24-year-olds • Share of women in wage employment in the nonagricultural sector • Proportion of seats held by women in national parliaments (World Bank, 2003) Education is positively related to improved maternal and infant health, economic empowerment, and political participation (United Nations Development Program [UNDP], 2004; World Bank, 2003). Education systems in developing countries are beginning to offer or seek ways to provide ICT training as a basic skill and knowledge base. Proactive policy for gender equality in ICT access has not always accompanied the unprecedented ICT growth trend. Many civil-society representatives to the World Summit on the Information Society (WSIS) argue for ICT access to be considered a basic human right (Girard & Ó Soichrú, 2004; UN, 1948). ICT capability is considered a basic skill for education curriculum at tertiary, secondary, and even primary levels in developed regions. In developing regions, ICT access and capability are more limited but are still tightly woven into economic communication systems. ICTs minimize time and geography barriers. Two thirds of the world’s poor and illiterate are women (World Bank, 2003). Infant and maternal health are in chronic crisis for poor women. Where poverty is highest, HIV and AIDS are the largest and fastest growing health threat. Ninety-five percent of people living with HIV and AIDS are in developing countries, partly because of poor dissemination of information and medical treatment. Women are more vulnerable to infection than men. Culturally reinforced sexual practices have led to higher rates of HIV infection for women. Gender equality and the empowerment of women, starting with education, can help fight the spread of HIV, AIDS, and other major diseases. ICT can enhance health education through schools (World Bank). Some ICT developers, practitioners, and distributors have identified ways to incorporate gender inclusiveness into their policies and practice for problem-solving ICT applications toward each MDG target area. Yet ICT research, development, education, training, applications, and businesses remain male-dominated fields, with only the lesser skilled and salaried ICT labor force approaching gender equality. Successful integration of gender equality and ICT development policy has contributed to MDG progress through several projects in the developing regions. Notable examples are the South-African-based SchoolNet Africa and Bangladesh-based Grameen Bank Village Pay Phone. Both projects benefit from international public-private partnerships. These and similar models suggest the value and importance of linking gender equality and empowerment with global partnership for development, particularly in ICT. This article reports on developing efforts to coordinate the achievement of the MDGs with policy, plans, and practice for gender equality beyond the universal educational target, and with the expansion of ICT access and participation for women and men. The article examines the background and trends of MDG 3, to promote gender equality and the empowerment of women, with particular consideration of MDG 8, to develop global partnership for development, in ICT access and participation.